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I 


A  TREATISE 


ON  THE  LAW  OF 


LANDLORD  and  TENANT 


IN  CONTINUATION  OF 


THE  AUTHOR'S  TREATISE 


ON  THE 


LAW  OF  REAL  PROPERTY 


BY 


LEONARD  A.  JONES,  A.  B.,  LL  B.  [Harv.] 

JUDGE  OF  THE  LAND  COURT  OF  MASSACHUSETTS 


INDIANAPOLIS 

THE  BOBBS-MERRILL  COMPANY 

PUBLISHERS 

1906 


T 


Copyright  1906 
BY  LEONAJ^D  A.  JONES 


THE  HOLLENBECK  PRESS 
INDIANAPOLIS 


PKEFAOE. 


Many  years  ago  I  began  upon  the  execution  of  a  plan  to  write 
upon  the  principal  topics  of  Keal  Property  law.  In  my  treatise  upon 
the  general  law  of  Real  Property  I  considered  the  practical  parts  of 
the  subject  as  applied  between  Vendor  and  Purchaser  in  modern  coii- 
veyancing,  or  estates  in  fee  and  their  transfer  by  deed.  I  stated  in 
the  preface  of  that  work  that  if  I  should  thereafter  write  upon  other 
parts  of  the  law  of  Real  Property,  such  writings  would  be  published 
under  separate  and  specific  titles.  Accordingly,  when  I  subsequently 
took  up  the  consideration  of  those  incorporeal  hereditaments,  the  uses 
or  profits  in  the  land  of  another,  I  published  a  separate  volume  under 
the  title  of  Easements.  I  had  already  treated  the  subject  of  Mort- 
gages of  Eeal  Property  and  the  subject  of  Liens.  The  subject  of 
Landlord  and  Tenant  still  remained  for  consideration.  In  writing 
upon  these  and  other  subjects  down  to  the  present  work,  I  had  never 
availed  myself  of  any  assistance  from  others  except  clerical  work. 
But  having  seven  years  ago  accepted  a  judicial  position  I  could  not 
go  on  with  the  present  work  without  assistance  from  some  scholarly 
lawyer  who  could  spend  his  days  in  the  Law  Library  searching  the 
Reports.  I  was  fortunate  to  obtain  the  assistance  of  Frank  N".  Morrill, 
Esq.,  of  the  Boston  bar,  a  graduate  of  Harvard  College  in  1897,  and  of 
the  Harvard  Law  School  in  1900.  He  had  already  had  considerable  ex- 
perience in  law  writing,  and  whatever  merits  the  present  work  may 
have  are  largely  due  to  his  careful  and  thorough  investigations. 

The  plan  of  the  present  work  is  to  state  the  law  concisely,  and  to 
refer  to  all  the  American  eases  worth  citing  and  the  leading  English 
cases.  It  is  believed  that  the  law  is  sufficiently  discussed  for  all  ordi- 
nary purposes,  and  that  the  reports  which,  are  essential  to  a  full  in- 
vestigation of  the  law  are  all  referred  to. 

January  1,  1906.  L.  A.  J. 

ill 


TABLE  OF  CONTENTS. 


CHAPTEE  I. 


CREATION    OF    THE    RELATION. 


I.    Essentials  of  a  Tenancy. 


SEC. 
1. 


A  tenancy  is  created  by  con- 
tract express  or  implied 
whereby  one  person  permits 
another  to  occupy  lands  actu- 
ally or  constructively. 

2.  Occupation    must    not    be    ad- 

verse. 

3.  The   relation    of   landlord    and 

tenant  cannot  be  inferred  as 
a  matter  of  law  from  the 
mere  fact  of  lawful  occu- 
pancy. 

4.  An  award  of  arbitrators  cannot 

create  the  relation  of  land- 
lord and  tenant. 

5.  It  is  not  necessary  to  the  crea- 

tion of  a  tenancy  that  there 
should  be  a  formal  hiring, 
letting,  or  leasing. 

6.  Reservation     of    rent    by    the 

landlord  is  not  essential  to 
the  creation  of  a  tenancy. 

7.  The  validity  of  a  landlord's  ti- 

tle is  not  material. 


8. 

The    fiduciary     relation    of     a 

18. 

lessee. 

19. 

II.    Subject  Matter. 

20, 

9. 

The  general  rule. 

10. 

Where   chattels   are   let  for   a 
term. 

///.   Proof  of  Tenancy. 

SEC. 

11.  The  existence  of  a  tenancy  or 

of  the  relation  of  landlord 
and  tenant  with  reference  to 
a  particular  piece  of  ground 
is  a  fact. 

12.  The  payment  of  rent  is  a  fact 

going  to  the  establishment  of 
a  tenancy. 

13.  Entry  and  occupation. 

14.  Province  of  judge  and  jury. 

IV.   Interesse  Termini. 

15.  Under  the  old  common  law  a 

bare  lease  did  not  give  any 
estate  in  the  land. 

16.  Even  though  there  Is  an  out- 

standing interesse  termini, 
the  owners  of  the  reversion 
could  maintain  an  action  of 
trespass  against  a  disseisor. 

17.  If  a  lease  is  so  worded  as  to  be 

a  bargain  and  sale. 

V.    Similar  Contractual  Relations. 

In  general. 

Statutory  remedy  dependent  on 
technical  relation  of  landlord 
and  tenant. 

A  servant  or  employe  occupy- 
ing a  house  of  his  master 
does  not  ordinarily  become 
his  tenant. 


VI 


TABLE    OF    CONTENTS. 


21.  There   is    no    inconsistency    in 

the  relation  of  master  and 
servant  with  that  of  landlord 
and  tenant. 

22.  An  independent  contractor  who 

contracts  to  do  certain  acts 
on  land  belonging  to  another. 

23.  Tenant  or  lodger. 

£4.  An  oral  contract  by  the  keeper 
of  a  boarding  house. 

25.  Mortgagor  in  possession. 

26.  Contracts  for  mortgage  or  for 

letting. 

27.  A   mortgagee   in   possession   is 

not  a  tenant  of  his  mort- 
gagor, and  the  latter  cannot 
recover  rent  after  redeeming. 

28.  Tenancy  between  joint  owners. 

YI.   Purchaser  in  Possession. 

29.  The  occupation  of  land  under 

a  contract  for  purchase. 

30.  In  the  absence  of  agreement  a 

purchaser's  right  to  possess 
is  not  greater  than  that  of  a 
tenant  at  will. 

31.  Modifying  circumstances. 

32.  That  a  vendee  in  possession  is 

entitled   to   emblements. 

33.  Where   a   vendor  of   land   con- 

tinues in  possession. 

34.  The   character   of  an   occupan- 

cy may  be  determined  by  a 
condition  subsequent. 

35.  Proof    of    change    in    relation- 

ship. 

VII.    Lease  or  License. 

36.  A    license    in   the    sense   it   is 

used  here  is  an  authority  to 
do  an  act  or  a  series  of  acts 
on  the  land  of  another. 

37.  A    mere    license,    while    it    re- 

mains executory,  is  revoca- 
ble at  the  pleasure  of  the 
licensor,  is  indivisible  and 
non-assignable. 

38.  A    parol    license    to    cut    and 

carry  away  standing  timber. 


SEC. 

39.  A  conveyance  for  a  limited  pe- 

riod of  an  interest  in  land 
subordinate  to  the  grantor's 
ownership  in  fee  is  a  lease. 

40.  A    permissive    occupation,    un- 

der a  contract,  express  or 
implied,  conferring  a  legal 
possession,  is  indispensable 
to  the  creation  of  a  tenancy. 

41.  Grant  of  mining  rights. 

42.  Payment  of  consideration  as  a 

test. 

43.  Restricted      and      intermittent 

use. 

44.  A  theater  ticket  is   only   a   li- 

cense. 

45.  In  cases  where  dams  are  built 

and  lands  flowed. 

VIII.    Cropping   Contracts. 

46.  The   term   "cropping  contract" 

is  used  here  to  indicate  any 
agreement  between  a  land- 
owner and  a  laborer  in  re- 
gard to  the  cultivation  of 
land  which  does  not  rise  to 
the  dignity  of  a  lease. 

47.  Whether  an  agreement  for  the 

occupation  of  farming  lands 
is  a  lease  or  a  cropping  con- 
tract depends  on  the  inten- 
tion of  the   parties. 

48.  There  has  been  a  tendency  in 

certain  cases  to  impute  a 
fixed  intention  to  the  land- 
owner not  to  create  a  ten- 
ancy. 

49.  If  one  be  hired  to  work  land, 

receiving  for  his  compensa- 
tion part  of  the  produce,  he 
is  a  cropper  and  not  a  ten- 
ant. 

50.  The  character  of  the  cropper's 

occupation  is  an  important 
factor  in  determining  the 
nature  of  the  contract. 

51.  Where    the    person    producing 

the  crop  is  in  exclusive  pos- 
session and  control  of  the 
land. 


TABLE  OF   CONTENTS. 


vn 


SEC. 

52.  The    relation    of    landlord    and 

tenant  may  exist  although 
rent  is  to  be  paid  in  a  part 
of  the  crop. 

53.  Tenancy    carries    with    it    the 

idea  of  legal  ownership  by 
the  tenant  of  the  products 
of  the  soil. 


SEC. 

54.  Co-tenancy   in   both    land   and 

crops. 

55.  The    doctrine    that    an    agree- 

ment for  a  crop   rent  takes 
effect  as  a  reservation. 

56.  In  some  jurisdictions  the  mat- 

ter of  letting  on  shares  has 
been  regulated  by  statute. 


CHAPTER  II. 


THE   INSTRUMENT   OF    DEMISE. 


7.   Formal  Parts. 


SEC. 

57.  The  instrument  in  writing  cre- 

ating the  relation  of  land- 
lord and  tenant  is  termed  a 
lease. 

58.  Lease  distinguished  from  other 

instruments. 

59.  Technical       requirements      of 

form. 

60.  Date  of  lease. 

61.  Lease  executed  on  Sunday. 

62.  Alteration  of  lease. 

€3.  Reservations  and  exceptions. 

64.  Stipulation  for  attorney's  fee. 

65.  Consideration. 

66.  The  true  construction  of  writ- 

ten leases  is  to  be  declared 
by  the  court  and  not  submit- 
ted to  the  finding  of  the  jury. 
€7.  The  lease  must  be  construed  as 
a  whole. 

68.  Custom  of  the  country. 

69.  Inconsistent  and  contradictory 

clauses. 
69a.  By  the  term  "relet,"  when 
used  in  an  alternative  pro- 
vision for  the  purchase  of 
improvements,  the  parties 
mean  a  new  letting  for  a 
fixed  and  definite  term. 

70.  Reformation  of  lease. 


II.   Execution  and  Delivery. 

SEC. 

71.  All  that  is  necessary  to  the  ex- 

ecution of  a  lease  is  that  it 
should  be  signed  and  deliv- 
ered. 

72.  On  the  other  hand,  a  different 

rule  prevails  in  some  states. 

73.  Rights  of  third  parties. 

74.  Seal  unnecessary. 

75.  A  lease  must  be  signed  by  the 

lessor. 

76.  Errors  in  signature. 

77.  Lessee  need  not  sign. 

78.  Where     the     parties     contem- 

plated the  signing  of  an  in- 
denture of  lease  by  both 
parties. 

79.  Acceptance  of  lease. 

80.  Form  of  action. 

81.  An  undisclosed  principal. 

82.  Leases  by  corporations. 

83.  Delivery   is   a   question    of   in- 

tent and  it  depends  on 
whether  the  parties  meant  it 
to  be  a  delivery  to  take  effect 
immediately. 

III.   Parties  to  Leases. 

84.  In  general. 


Vlll 


TABLE    OF    CONTENTS. 


SEC 
85 


86 


87 


89 
90, 


91. 

92. 
93. 
94. 
95. 
96. 

97. 


.  The  general  doctrine  of  the 
law  is  that  a  person  dispos- 
sessed cannot  make  a  valid 
conveyance. 

.  One  tenant  in  common  cannot 
as    such    make    a    lease    of 
community  land. 
Leases     by     and     to     married 
women. 

Right  of  husband  to  lease 
wife's  real  estate. 

Guardians. 

Except  in  regard  to  the  dura- 
tion of  the  terms,  there 
seems  to  be  no  restriction  as 
to  the  mode  in  which  the 
guardian  must  proceed. 

Trustees  have  a  general  power 
of  leasing. 

Infancy  of  lessee. 

Executors   and   administrators. 

Mortgagor  and  mortgagee. 

Infancy  of  lessor. 

Although  a  room  may  properly 
be  regarded  as  a  necessary. 

Assignment  by  infant. 


106. 


107. 
108. 
109. 
110. 


IV.   Description  of  Premises. 

98.  Where  a  lessee  has  not  entered 

into  occupation,  the  lease 
must  with  reasonable  cer- 
tainty describe  the  land  de- 
mised. 

99.  The   practical    location 

boundaries     of     the 
premises. 

100.  A    defective    or    totally    inade- 

quate description. 

101.  The    question    whether    a    par- 

ticular place  is  a  part  of  the 
demised  premises. 

102.  A  lease  of  a  building  eo  nomine 

is  a  lease  of  the  land  on 
which   the   building  stands. 

103.  A    description    of   a    house   by 

the  street  number. 

104.  Any    right    of    way    or    other 

easement. 


of   the 
leased 


SEC. 

105.  The  lease  of  property  abutting 
on  a  public  street  carries 
with  it  all  the  easements,  in- 
cidents and  rights  of  the 
owner. 

A  tenant  could  prevent  an  in- 
terruption of  his  right  to  an 
easement  for  light  and  air. 

What  constitutes  the  curtilage. 

Use  of  outside  walls  for  signs. 

Riparian  boundaries. 

The  reservation  to  lessor  of  a 
right  to  select  a  portion  of 
the  leased  premises  and  re- 
tain them  for  his  own  use 
has  an  effect  of  the  condi- 
tion subsequent. 

V.   Duration  of  Term. 

111.  Leases    may    at    law    be    for 

years,  for  life  or  of  perpet- 
ual duration. 

112.  The  term_  for  which  a  lease  for 

years  is  to  run  should  be 
certain. 

Leases  running  from  an  indefi- 
nite future  time. 

A  contingent  limitation  of  a 
term  is  valid  and  enforceable. 

Happening  of  contingency. 

Lease  for  life. 

Errors  in  calculation. 

A  lease  is  a  single  instrument. 

In  determining  when  a  term 
begins,  the  word  "from"  may 
be  either  exclusive  or  inclu- 
sive. 


113. 

114. 

115. 
116. 
117. 
118. 
119. 


120. 

121. 
122. 

123. 

124. 


VI.   Illegal  Leases. 

A  colorable  lease  for  an  illegal 
purpose  cannot  be  enforced. 

Kind  of  illegality. 

Use  of  premises  for  the  use  of 
prostitution. 

Premises  to  be  used  for  gam- 
bling. 

Setting  up  defense  of  Illegal- 
ity. 


TABLE    OF    CONTENTS. 


IX 


yil.    Leases  Obtained  hy  Fraud. 

SEC. 

125.  The    rule    that    fraud    in    the 

making  of  a  written  agree- 
ment may  be  shown  by  parol 
evidence. 

126.  Rescission  of  lease  and  defense 

of  action  for  rent. 

127.  In  Missouri. 

128.  Election  of  remedies. 

129.  What  constitutes  fraud. 

YIII.  Collateral  Parol  Agreement. 

130.  Contracts,    if    a    statute    does 

not  intervene,  may  be  ex- 
pressed partly  by  parol. 

131.  Compliance     with     statute     of 

frauds. 

132.  Not  only  must  the   agreement 

stand  the  test  of  the  statute 
of  frauds,  but  it  must  be  col- 
lateral to  the  lease. 

133.  On    the    question    what    agree- 

ments are  collateral  there  is 
a  wide  divergence  of  judicial 
opinion. 

134.  In  England. 

135.  A  subsequent  agreement  reduc- 

ing rent. 

136.  In  accordance  with  the  general 

law  regarding  consideration 
for  a  contract. 

137.  The  execution  of  a  new  lease 

to  the  same  tenant. 

IX.    Agreements  to  Lease. 

137a.  What  constitutes  a  valid  agree- 
ment. 

138.  Specific  performance  of  agree- 

ment. 

139.  Breach  of  agreement. 

140.  Measure  of  damages. 

141.  Lease  or  agreement  to  lease. 

142.  The  test  of  intention  in  regard 

to  making  a  lease  or  an 
agreement  to  lease  is  wheth- 
er the  agreement  leaves  any- 
thing incomplete. 


143.  Where  there  is  no  covenant  for 

executing  any  further  instru- 
ment an  agreement  will 
take  effect  as  a  present  lease, 
even  though  the  term  is  not 
to  begin  until  a  future  time. 

144.  The  words  "agree  to  let"  have 

for  a  long  time  been  held  to 
be  apt  words  of  present  de- 
mise. 

145.  Agreements   subject   to   a   con- 

dition. 

146.  Effect  of  possession. 

X.    Statute  of  Frauds. 

147.  The  English  act. 

148.  Form  of  statutes  for  the  pre- 

vention of  frauds  and  per- 
juries in  the  United  States. 

149.  The   requirement  of  the  origi- 

nal English  statute  as  to  the 
value  of  the  rent  reserved. 

150.  In  New  Mexico. 

151.  Assignments. 

152.  Leases   for   one  year  from   fu- 

ture date. 

153.  Extent  of  validity. 

154.  Duration  of  term. 

155.  Whether   void    only   as   to    ex- 

cess. 

156.  Sufficiency  of  memorandum. 

157.  Authority  of  agent. 

158.  Leases    by    undisclosed    princi- 

pals. 

159.  Effect  of  part  performance  of 

a  parol  lease. 

160.  In  order  to  amount  to  part  per- 

formance, an  act  must  be 
unequivocally  referable  to 
the  agreement. 

161.  In  Alabama. 

162.  There  is  a  very  obvious  differ- 

ence between  a  parol  agree- 
ment to  make  a  written 
lease  and  a  parol  lease. 

XI.   Recording. 

163.  Statutory  provisions. 


X  TABLE    OF    CONTENTS. 

SEC.  SEC. 

164.  Validity  of  unrecorded   instru-     166.  Record  of  sublease. 

ments.  167.  Computation  of  time. 

165.  Place  of  record. 

CHAPTEK  III. 

KINDS    OF    TENANCY, 


I.  Estates  for  Years. 

SEC. 

168.  The  chattel  interest  known  as 

a  term  for  years. 

169.  Term   for   years  or  from  year 

to  year. 

170.  A  lease,  on  account  of  uncer- 

tainty of  duration,  might  be 
inoperative  for  any  other 
purpose  than  the  creation  of 
an  estate  at  will. 

171.  A  lease  for  years  is  a  chattel 

real  only. 

172.  Sale  on  execution  as  a  chattel. 

173.  Curtesy  and  dower. 

II.  Tenancy  at  Will. 

174.  An   estate  at  will,   in   the  pri- 

mary and  technical  sense  of 
that  expression,  is  created 
by  grant  and  contract. 

175.  Where    a   tenant   occupies   the 

premises  without  rent  and 
without  any  time  agreed 
upon  to  limit  the  occupation. 

176.  A    parol    gift   of   land    creates 

merely  an  estate  at  will  in 
the  donee. 

177.  The   necessity   for   consent   by 

the  landowner. 

178.  A  landowner's  mere  consent  to 

the  occupation  of  his  land 
by  another  does  not  neces- 
sarily imply  consent  to  such 
occupation  as  tenant. 

179.  The  possession  of  a  tenant  at 

will. 

180.  Entry  and  occupation  under  a 

void  parol  lease  creates  a 
tenancy. 


SEC. 

181.  Unauthorized  lease. 

182.  Determination  of  tenancies   at 

will. 

183.  Yet  until  a  termination  of  the 

will  the  possession  of  a  ten- 
ant at  will  is  lawful. 

184.  Death   of  parties  and   destruc- 

tion of  subject  matter. 

185.  Notice  to  tenant  at  will. 

186.  An  estate  at  will  is  uncertain 

and  defeasible,  and  is  de- 
stroyed by  the  alienation  of 
the  premises  by  either  party. 

187.  Purpose  and  mode  of  transfer 

immaterial. 

188.  Notice   of  the   transfer   of   the 

landlord's  title. 

189.  Recovery   of   rent  till   time   of 

alienation. 

190.  The  estate  of  a  tenant  at  will 

is  not  an  interest  capable  of 
bargain  and  sale. 

191.  Notice  to  the  landlord  is  essen- 

tial. 

in.    Tenancy  from  Year  to  Year. 

192.  Rests  on  judicial,  not  statutory 

authority. 

193.  Applicable  to  conditions  in  this 

country. 

194.  The  expression  tenant  at  will 

from  year  to  year  exactly 
expresses  the  old  common- 
law  idea  of  periodical  tenure. 

195.  Similarity  to  estates  for  term 

of  years. 

196.  Statutory  modifications. 


TABLE    QF    CONTENTS. 


XI 


SEC, 

197.  An  estate  at  will  is  converted 

into  an  estate  from  year  to 
year  by  the  payment  of  rent. 

198.  The  receipt  of  rent  by  a  land- 

lord from  which  a  tenancy 
from  year  to  year  is  inferred 
may  be  explained  on  other 
grounds. 

199.  Where  a  tenant  enters  and  oc- 

cupies under  an  invalid  parol 
lease,  the  agreement  governs 
the  terms  of  the  holding. 

200.  The  form  of  action  to  recover 

rent  when  occupation  has 
been  under  a  void  agreement 
is  one  for  use  and  occupa- 
tion. 

201.  Yearly  tenancy  created  by  hold- 

ing over. 

202.  The   terms  of   a  year  to   year 

holding  are  the  same  as 
those  of  the  lease  which  pre- 
ceded it. 

203.  Option    as    to    yearly    tenancy 

rests  with  landlord. 

204.  The  landlord's  act  of  receiving 

rent  implies  such  assent  on 
his  part  to  the  holding  over. 

205.  It    is    not    necessary    for    the 

landlord  to  Indicate  his  as- 
sent to  a  holding  over  by 
overt  acts. 

206.  Dissent  on  part  of  tenant. 

207.  Rule  in   England. 

208.  Surrender  rendered  impossible 

by  act  of  God. 

209.  Necessary    length    of    tenant's 

holding  over. 
209a.  If  the  landlord  is  in  any  way 
responsible    for    the    holding 
over. 

210.  Rebutting  presumption  of  year 

to  year  tenancy. 

211.  A  covenant  to  pay  rent  at  the 

same  rate  for  such  further 
term  as  the  lessees  or  per- 
sons claiming  under  them 
shall  hold  the  premises. 


SEC. 

212.  Where  there  is  an  express  re- 

newal of  a  lease. 

213.  Changes  in  the  amount  of  rent. 

214.  Where  a  lease  provided   for  a 

penalty  of  double  rent. 

IV.    Tenancy  from  Month  to  Month. 

215.  The   reservation    and    payment 

of  rent  at  stated  periods. 

216.  A     tenancy     from     month     to 

month  may  be  created  by  ex- 
press agreement. 

217.  Effect  of  void  lease  to  render 

time  for  termination  definite. 

218.  A  lessee  for  a  year  who  holds 

over  after  his  term  expires 
becomes  a  tenant  from  year 
to  year  even  though  the  rent 
is  payable  in  monthly  instal- 
ments. 

219.  A     tenancy     from     month     to 

month  is  not  a  continuing 
right  of  possession. 

V.    Tenancy  by  Sufferance. 

220.  General  nature  of  holding. 

221.  Arises  on  holding  over. 

222.  To  constitute  a  tenancy  by  suf- 

ferance there  need  not  have 
been  any  prior  contract  of 
letting. 

A  mortgagor  holding  after  a 
sale  of  the  mortgaged  prop- 
erty for  breach  of  condition 
is  a  tenant  at  sufferance. 

Another  case  in  which  a  ten- 
ancy at  sufferance  arises 
without  any  preceding  con- 
tract of  tenancy. 

Exception  to  rule. 

Rights  of  tenant  at  sufferance. 
227.  The  common  law  gave  no  right 
of  action  in  any  case  against 
a  tenant  at  sufferance  to  re- 
cover for  use  and  occupation. 

Right  of  entry  on  tenant  at 
sufferance. 


223. 


224. 


225 
226 


228. 


xu 


TABLE   OF    CONTENTS. 


SEC. 
229. 


230. 


The  term  tenant  at  sufferance 
is  not  always  used  in  the 
strict  sense  which  it  bore  in 
the  old  law. 

Use  of  term  in  statutes. 

YI.   Statutory  Provisions. 


231.  California. 

232.  Connecticut. 

233.  District  of  Columbia. 

234.  In  Delaware. 

235.  Georgia. 

236.  In  Indiana. 


SEC. 

237.  In  Iowa. 

238.  In  Kentucky. 

239.  In  Maine. 

240.  In  Massachusetts. 

241.  In  Michigan. 

242.  In  Missouri. 

243.  Nevada. 

244.  In  New  Hampshire. 

245.  New  York. 

246.  Oklahoma  Territory. 

247.  In  Rhode  Island. 

248.  South  Carolina. 

249.  In  Washington. 

250.  Wyoming. 


CHAPTEE  IV. 


NOTICE    TO    QUIT. 


7.   "Necessity  for  Notice. 


SEC. 

251. 


Notice  to  quit  is  necessary  to 
terminate  a  year  to  year 
holding. 

252.  In  the  United  States  the  length 

of  notice  depends  almost  en- 
tirely on  statute. 

253.  At  common  law  a  tenant  from 

month  to  month  *  must  give 
thirty  days'  notice  of  his  in- 
tention to  leave. 

254.  A  written  notice  to  terminate 

a  tenancy  strictly  at  will  or 
by  sufferance  was  not  re- 
quired at  common  law. 

255.  When  there  is  a  valid  lease  for 

a  time  certain,  no  notice  to 
quit  is  necessary. 

256.  Where  a  tenant  holds  premises 

for  the  full  term  provided 
for  by  a  void  agreement. 

257.  No  notice  to  quit  is  necessary 

when  the  parties  do  not 
stand  in  the  relation  of  land- 
lord and  tenant. 


SEC. 

258.  Where  a  certain  kind  of  notice 

is  by  statute  required  to  ter- 
minate a  tenancy  a  proper 
notice  is  essential  to  end  the 
holding. 

259.  The    rights    and   duties   in    re- 

spect to  the  giving  of  notices 
to  quit  between  landlord  and 
tenant  are  mutual  and  recip- 
rocal. 

11.   Sufficiency  of  Notice. 

260.  That  the  notice  must  point  to 

the  time  when  the  tenants 
must  quit. 

261.  The  time  for  quitting  must  be 

on  the  day  of  the  year  when 
the  tenancy  commenced. 

262.  Defective  notice. 

263.  A  notice  to  quit  should  be  ad- 

dressed to  the  lessee  or  ten- 
ant in  possession  of  the  de- 
manded premises. 


TABLE   OF    CONTENTS. 


XUl 


SEC. 

264.  A  formal  insufficiency  of  a  no- 

tice to  quit  is  waived  by  the 
tenant's  repudiation. 

265.  Authority  of  agent. 

266.  Who  may  give  notice  after  as- 

signment. 

267.  A  notice  to  quit  should  be  ab- 

solute rather  than  in  the  al- 
ternative. 

268.  Notice  by  parol  to  terminate  a 

tenancy  from  year  to  year 
was  of  course  sufficient  at 
common  law. 

269.  Notices  to  and  from  joint  own- 

ers. 

270.  The  requirements  for  notice  to 

quit  may  be  waived  by 
agreement  between  the  par- 
ties. 

271.  Enforcement  of  notice. 

III.    Service  of  Notice. 

272.  Personal  service  of  a  notice  to 

quit  upon  a  tenant  is  not  nec- 
essary. 

273.  In    England    a    notice    to    quit 

left  with  the  servant  or  wife 
of  the  tenant. 

274.  Service  of  a  notice  by  mail. 

275.  Service  by  posting. 

276.  Proof  of  service. 

IV.    Statutory  Provisions. 

277.  Alaska. 

278.  Arizona. 

279.  Arkansas. 


SEC. 

280.  California. 

281.  Colorado. 

282.  Connecticut. 

283.  Delaware. 

284.  District  of  Columbia. 

285.  Georgia. 

286.  Idaho. 

287.  Illinois. 

288.  Indiana. 

289.  Iowa. 

290.  Kansas. 

291.  Kentucky. 

292.  Louisiana. 

293.  Maine. 

294.  Maryland. 

295.  Massachusetts. 

296.  Michigan. 

297.  Minnesota. 

298.  Mississippi. 

299.  Missouri. 

300.  Montana. 

301.  Nevada. 

302.  New  Hampshire. 

303.  New  Jersey. 

304.  New  York. 

305.  North  Carolina 

306.  North  Dakota. 

307.  Ohio. 

308.  Oregon. 

309.  Oklahoma  Territory. 

310.  Pennsylvania. 

311.  Rhode  Island. 

312.  South  Carolina. 

313.  South  Dakota. 

314.  Virginia. 

315.  Washington. 

316.  West  Virginia. 

317.  Wisconsin. 


CHAPTEE  V. 


COVENANTS    IN    LEASES. 

I.    Construction  and  Effect. 


SEC. 

318. 


A  covenant  is  an  agreement, 
convention  or  promise  of  two 
or  more  parties  by  deed  in 
writing. 


SEC. 

319.  No  particular  form  of  words  is 

necessary     to     constitute     a 
covenant. 

320.  Joint  covenantors. 


XIV 


TABLE    OF    CONTENTS. 


321.  Covenants    have   been    divided 

into  express  and  implied  cov- 
enants. 

322.  The  general  rule  for  interpre- 

tation of  covenants  in  a  lease 
is  to  expound  them  so  as  to 
give  effect  to  the  actual  in- 
tent of  the  parties  as  collect- 
ed from  the  entire  context. 

323.  Covenants    are    either    depend- 

ent, concurrent  and  mutual, 
or  independent. 

324.  Covenants     in     an     agreement 

will  be  construed  as  condi- 
tions precedent  or  as  inde- 
pendent agreements. 

325.  Violations  of  independent  cov- 

enants by  a  landlord  will  not 
require  an  injunction. 

326.  The  distinction  between  a  cov- 

enant and  a  condition  exists 
even  when  the  agreement  is 
to  surrender  the  property. 

327.  The  apt  words  of  limitation. 

328.  Running  of  covenants. 

329.  Rule  in  Spencer's  case. 

330.  A  covenant  in  regard  to  a  per- 

sonal matter  undertaken  by 
one  party  to  a  lease  and  con- 
tained in  the  instrument  of 
demise  is  not  binding  upon 
the  assigns  of  the  cove- 
nantor. 

331.  Covenants   affecting   the   mode 

of  occupation  and  enjoyment 
of  leased  premises  run  with 
the  land. 

332.  A    covenant    to    buy    improve- 

ments at  the  end  of  the  term 
runs  with  the  reversion. 

333.  A    covenant    of    guaranty    for 

rent  is  collateral  to  the  lease 
it  accompanies. 

334.  Running    of     covenants     after 

breach. 


335.  A    covenant    to    insure    which 

had  for  its  object  the  benefit 
of  the  lessor  only,  as  where 
the  money  paid  in  the  event 
of  the  loss  would  go  to  him, 
has  been  regarded  as  col- 
lateral. 

77.   For  Renewal  of  Lease. 

336.  A  common  form  of  lease  fixes 

a  short  term  for  which  the 
lessee  is  bound  to  retain  the 
premises  and  then  gives  him 
a  right  to  occupy  them  for 
a  further  period  if  he  so  de- 
sires. 

337.  A  distinction  between  a  stipu- 

lation to  renew  a  lease  and 
one  to  extend  it  for  an  addi- 
tional period. 

338.  On  the  question  whether  a  gen- 

eral provision  to  renew  a 
lease  calls  for  a  new  one. 

339.  Where  lessee  is  entitled  to  the 

renewal  of  his  lease,  he  must 
give  notice  promptly  at  or 
before  the  expiration  of  the 
first  term  or  according  to  the 
agreement. 

340.  When  there  is  an  option  to  les- 

see to  have  the  same  term 
extended  no  notice  of  an 
election  to  have  the  term 
continue  is  necessary  unless 
it  is  required  by  a  clause  in 
the  lease. 

341.  However,  the  lessor  has  a  right 

to  call  on  the  lessee  to  elect 
before  the  end  of  the  term. 

342.  A    requirement    for    notice    of 

election  must,  in  the  absence 
of  waiver,  be  complied  with. 

343.  Validity  of  covenants  to  renew. 


TABLE   OF    CONTENTS. 


XV 


SEC. 

344.  A  renewal  agreement  cannot  be 

made  to  apply  to  subdivi- 
sions of  the  premises,  but 
must  be  claimed  in  its  en- 
tirety. 

345.  Parties  bound  and  parties  en- 

titled under  renewal  agree- 
ments. 

346.  Where  there  is  an  arrangement 

for  arbitration  to  fix  the 
amount  of  rent  in  a  renewal 
lease. 

347.  A   conditional   covenant   to   re- 

new upon  the  termination  of 
the  lease  is  not  a  present  de- 
mise. 

348.  Happening  of  contingency. 

III.    For  Quiet  Enjoyment. 

349.  When  implied. 

350.  The  rule  that  where  an  instru- 

ment contains  an  express 
covenant  in  regard  to  any 
subject,  no  covenants  are  to 
be  implied  in  respect  to  the 
same  subject. 

351.  Statutory     provisions     against 

implied  covenants. 

352.  The    legal    implication    of    the 

covenant     for     quiet     enjoy- 
ment. 
352a.  On  the  lease  of  surplus  water 
in  a  canal. 

353.  It   is   sufficient  in   many  cases 

that  a  lease  contains  an  im- 
plied covenant  which  Is  a 
good  warranty  by  the  land- 
lord against  his  own  acts. 

354.  The  rule  as  to  the  breach  of  a 

covenant  for  quiet  enjoyment 
is  that  there  can  be  no 
breach  without  an  eviction, 
actual  or  constructive. 

355.  The  question  of  eviction  or  no 

eviction  depends  upon  the 
circumstances,  and  is  in  all 
cases  to  be  decided  by  the 
jury. 


356.  An  eviction  may  be  actual,  as 

where  there  is  a  physical  ex- 
pulsion, or  it  may  be  con- 
structive. 

357.  Physical  expulsion. 

358.  Entry  by  landlord  under  claim 

of  privilege. 

359.  Interference  with  light  and  air. 

360.  Eviction    by    nuisance    on    ad- 

joining premises. 

361.  Under  a  covenant  for  quiet  en- 

joyment, the  lessor  does  not 
covenant  against  the  acts  of 
wrong-doers. 

362.  A  taking  of  the  demised  prem- 

ises by  the  sovereign  under 
the  right  of  eminent  domain 
is  not  an  eviction. 

363.  An  outstanding  title  which  is 

paramount  to  that  of  his 
landlord  is  no  defense. 

364.  Eviction  suspends  rent. 

365.  If  a  tenant  is  evicted   from  a 

material  part  of  the  prem- 
ises, he  has  a  legal  right  to 
abandon  the  whole. 

366.  If  the  lessor  give  to  his  lessee 

a  complete  and  perfect  right 
of  possession  to  the  demised 
premises,  he  has  done  all 
that  he  is  required  to  do  by 
the  terms  of  an  ordinary 
lease. 

367.  In  direct  opposition  to  the  law 

as  just  stated,  it  is  estab- 
lished in  England  and  in  sev- 
eral jurisdictions  in  the 
United  States  that  the  lessor 
is  bound  to  put  the  lessee  in 
possession. 
367a.  Where  the  lessor  is  in  posses- 
sion of  the  leased  premises 
and  refuses  to  vacate. 

368.  Tenants  remedy  by  action. 

369.  Where  the  lessee  has  actually 

been  deprived  of  the  posses- 
sion or  use  of  demised  prem- 
ises, damages  resolve  them- 
selves into  three  elements. 


XVI 


TABLE   OF    CONTEXTS, 


SEC. 

370.  In    regard    to    the    second    ele- 

ment of  damage,  the  rule  for 
the  measure  of  damages  is 
that  the  tenant  is  entitled  to 
recover  for  such  loss  as  re- 
sults directly  and  necessarily 
from  the  breach  of  the  con- 
tract. 

371.  Loss  of  prospective  profits. 

IV.   In  Regard  to  Buildings  and 
Improvements. 

372.  A  general  covenant  by  a  lessee 

to  build  is  satisfied  by  an 
erection  of  the  building  at 
any  time  before  the  end  of 
the  term. 

373.  In  the  absence  of  agreement,  a 

landlord  is  not  liable  for  the 
value  of  improvements  made 
by  his  tenant  upon  the  de- 
mised premises. 

374.  Authority  to  build. 

375.  Rights    under    alternative    op- 

tions. 

376.  Improvements    as    part    of    re- 

alty. 

377.  Such   covenants   run   with   the 

land. 

378.  Mechanics'    liens    for    improve- 

ments. 

379.  Proceedings   for  appraisal. 

380.  Restraints  upon  buildings. 

381.  Tenant's  right  to  light  and  air 

against  landlord. 

V.   Restricting  Use  of  Premises. 

382.  Validity  of  restrictions. 

383.  What    constitutes    a    covenant 

for  restrictive  use. 

384.  Equity  will  restrain  an  infrac- 

tion of  an  agreement  in  a 
lease  in  regard  to  the  use  of 
the  premises. 

385.  A  covenant  for  exclusive   per- 

sonal occupation  on  the  part 
of  the  lessee  cannot  be 
classed  as  one  of  the  usual 
covenants  in  a  lease. 


SEC. 

386.  An  agreement  by  a  lessee  not 

to  "make  or  suffer"  an  unlaw- 
ful use  of  the  premises 
should  be  interpreted  as  a 
stipulation  that  shall  be  no 
unlawful  use. 

VI.   As  to  Sale  of  Premises. 

387.  An  option  in  a  lease  giving  the 

lessee  a  privilege  of  purchas- 
ing the  premises. 

388.  A  clause  in  a   lease  reserving 

to  the  lessor  the  right  to  sell. 

VII.   For  Insurance. 

389.  So  common  is  the  practice  of 

fastening  on  the  lessee  the 
burden  of  insuring. 

390.  Measure  of  damages  for  failure 

to  insure. 

VIII.   For  Repairs. 

391.  A  covenant  by  a  lessee  to  re- 

pair. 

392.  It  is  the  established  rule  of  the 

common  law  that  an  express 
covenant  to  repair  binds  the 
covenantor  to  make  good  any 
injury  which  human  power 
can  remedy. 

393.  Responsibility     for     rebuilding 

rests  on  contract. 

394.  The   phrase    "unavoidable    cas- 

ualty" is  in  common  use  in 
leases  in  this  country  and 
has  a  well  settled  and  un- 
derstood meaning. 

395.  "Damages    by    the     elements" 

which  are  ordinarily  except- 
ed from  a  lessee's  covenant 
to  keep  in  repair. 

396.  The  external  parts  of  premises 
are  those  which  form  the  in- 
closure  of  them  and  beyond 
which  no  part  of  them  ex- 
tends. 


TABLE   OF   CONTENTS. 


XVll 


SEC. 

397. 


398. 

399. 
400. 

401. 
402. 


403. 
404. 


405. 


406. 
407, 
408. 


A  general  covenant  to  repair 
must  be  construed  to  have 
reference  to  the  condition  of 
the  premises  at  the  time 
when  the  covenant  begins  to 
operate. 

A  lessee  who  has  been  com- 
pelled to  rebuild  has  no 
claim  on  insurance  taken  out 
by  the  lessor  for  his  own 
benefit. 

City  ordinance  forbidding 
wooden  buildings. 

A  duty  to  maintain  machinery 
in  a  leased  mill,  will  be  cre- 
ated by  a  covenant  of  the 
kind  under  discussion. 

Painting,  papering  and  deco- 
rating. 

The  point  of  time  at  which  the 
then  condition  of  the  prem- 
ises furnishes  the  standard 
of  repair  which  a  lessee  is 
bound  to  maintain. 

When  right  of  action  accrues. 

The  obligation  of  a  landlord 
in  any  case  to  repair  and  re- 
build leased  premises  rests 
solely  on  express  contract. 

A  tenant  has  no  equity  to  com- 
pel his  landlord  to  expend 
money  received  from  an  in- 
surance company  on  the  de- 
mised premises  being  burned 
down,  in  rebuilding  the 
premises. 

In  California. 

By  statute  in  Dakota. 

A  covenant  by  a  lessor  to  make 
all  necessary  repairs  on  the 
outside  of  a  building  is  not 
a  covenant  that  the  outside 
shall  not  give  way. 


SEC. 

409. 
410. 


411. 


412. 


413. 


414. 


415, 


416. 


417. 

418 
419 


420. 


Requirement  of  notice  to  land- 
lord. 
Where  a  landlord  fails  to  keep 
his  covenant  to  make  exteri- 
or repairs,  a  tenant  has  sev- 
eral remedies. 

A  covenant  to  pay  taxes  like 
one  to  pay  rent  is  an  under- 
taking to  do  something  with 
respect  to  the  land  itself. 

The  general  rule  in  regard  to 
leases  for  years  is  that  where 
the  lease  is  silent  on  the  sub- 
ject, the  landlord  is  bound 
to  pay  all  state  and  munici- 
pal taxes. 

In  many  jurisdictions  it  has 
by  statute  been  made  the  du- 
ty of  the  tenant  holding  any 
leasehold  estate  to  pay  the 
taxes  levied  on  the  demised 
premises. 

The  price  charged  for  water 
by  a  city  is  not  a  tax  or  as- 
sessment chargeable  upon 
the  premises. 

The  intention  of  the  parties, 
as  shown  by  the  language 
of  the  instrument,  determines 
what  taxes,  burdens  and  as- 
sessments are  to  be  borne  by 
the  lessee. 

If  a  lessee  of  a  part  of  a  build- 
ing covenants  with  the  lessor 
that  he  will  pay  the  taxes. 

Levy  distinguished  from  as- 
sessment. 

Invalid  taxes. 

The  destruction  of  the  leased 
premises  does  not  as  a  gen- 
eral rule  release  the  tenant 
from  his  covenant  to  pay 
taxes. 

What  constitutes  a  breach. 


Jones  L.  &  T. — ii 


XVlll 


TABLE   OF    CONTENTS. 


CHAPTER  VI. 


ASSIGNMENT  OF  LEASES. 


I.   By  Lessor. 

SEC. 

421.  According  to  the  modern  rule 

the  power  of  a  lessor  is  am- 
ple to  transfer  either  the  en- 
tire reversion  or  his  interest 
under  the  lease. 

422.  In    regard    to    the    effect    of    a 

transfer  of  the  reversion  on 
the  rents. 

423.  In  Illinois  the  statute  of  Anne 

dispensing  with  attornment 
was  not  regarded  as  in  force 
in  1871. 

424.  A  reversion  not  being  an  estate 

in  possession,  would  lie  in 
grant  and  the  ordinary  mode 
of  transfer  would  be  by  deed, 
signed,  sealed  and  delivered. 

425.  Rent    may    be    excepted    in    a 

grant  of  a  reversion  by  a 
lessor. 

426.  Attornment    has    been    defined 

to  be  the  acknowledgment  by 
a  tenant. 

427.  Covenants  in  assignment  to  de- 

liver possession. 

428.  A  conveyance  of  the  reversion 

in  fee  to  a  lessee  or  his  as- 
signee holding  an  outstand- 
ing lease  causes  the  lease  to 
merge  in  the  freehold  estate. 

429.  Effect    of    sub-tenancy    on 

merger. 

430.  An  assignment  of  a  lessor's  in- 

terest under  a  lease  without 
a  transfer  of  any  rights  in 
the  reversion  is  equivalent 
to  an  assignment  of  rent. 

//.   By  Lessee. 

431.  Transfer  of  lessee's  interest. 

432.  Statutory     provisions     against 

assignment  and  sub-letting 
have  been  enacted  in  some 
states. 


433.  In   Georgia    it  is   provided    by 

statute  that  an  estate  for 
years,  if  it  be  in  lands,  passes 
as  realty. 

434.  In  Texas. 

435.  "Where  the  whole  of  the  term 

of  a  leasehold  is  assigned, 
there  is  no  relation  of  land- 
lord and  tenant  between  the 
assignor  and  the  assignee. 

436.  What  passes  on  an  assignment. 

437.  In  accordance  with  the  princi- 

ple that  the  form  of  the  in- 
strument of  assignment  is 
immaterial. 

438.  The  transfer  of  a  lease  by  as- 

signment may  be  by  indorse- 
ment on  the  back  of  the 
lease  or  by  separate  instru- 
ment. 

439.  A   leasehold   estate   created   by 

an  instrument  under  seal, 
may  be  assigned  by  an  in- 
strument not  under  seal. 

440.  That    the    English    statute    of 

frauds  extends  to  agreements 
for  the  assignment  of  a 
lease. 

441.  The  validity  of  a  parol  assign- 

ment of  a  valid  parol  lease. 

442.  Where  one  other  than  the  les- 

see occupies  leased  premises 
during  the  continuation  of 
the  term  and  pays  rent,  he  is 
prima  facie  in  as  assignee  of 
the  term. 

443.  A  receiver  appointed  by  a  court 

to  take  charge  of  a  lessee's 
property  does  not  thereby 
become  an  assignee  of  the 
term. 

444.  Where  a  sheriff  under  an  execu- 

tion, sells  a  term  for  years, 
it  operates  as  an  assignment 
at  law. 


TABLE    OF    COXTEXTS. 


XIX 


SEC. 

445.  There  is  a  wide  distinction  in 

law  between  an  assignee  of 
a  lease  and  a  sub-tenant. 

446.  An    underlease   for   the    whole 

term  is  an  assignment. 

III.    Rights  and  Liabilities  of  Par- 
ties. 

Ail.  The  express  covenants  in  a 
lease  continue  to  be  binding 
upon  the  covenantor  not- 
withstanding his  assignment 
of  the  lease. 

448.  The    contract    of    the    original 

lessee  continues  in  force  un- 
less the  lessor  accepts  the 
assignee  as  sole  tenant  and 
absolves  the  original  lessee. 

449.  Lessee   is   liable   as  surety  for 

the  assignee. 

450.  The  duration  of  a  term  after 

an  assignment  does  not  at  all 
affect  the  obligation  of  a  les- 
see upon  his  express  cove- 
nant. 

451.  In  case  a  lessee  has  been  held 

to  his  liability  for  rent  after 
an  assignment,  he  will  be  en- 
titled to  recover  the  rent 
from  the  assignees. 

452.  When  the  covenant  to  pay  rent 

is  implied  in  law,  acceptance 
of  rent  directly  from  an  as- 
signee will  discharge  the 
original  lessee. 

453.  A  surety  for  a  lessee  is  not  dis- 

charged from  liability  on  the 
express  covenants  of  the 
lease  by  an  assignment. 

454.  Liability  of  lessor  on  covenant 

after  assignment. 

455.  An  assignee  of  a  lease  is  bound 

by  privity  of  estate  to  per- 
form the  express  covenants 
which  run  with  the  land. 

456.  The    liability    of    an    assignee 

upon  the  covenants  of  a 
lease  continues  only  so  long 
as  the  privity  of  estate  con- 
tinues. 


457.  The  assignee  of  a  leasehold  es- 

tate is  not  bound  by  the  cov- 
enants of  the  lease  till  the 
transfer  has  been  completed 
by  his  acceptance  of  the  as- 
signment. 

458.  An  actual  entry  by  an  assignee 

upon  the  demised  premises  is 
not  necessary  in  order  that 
he  should  be  bound  by  the 
covenant  to  pay  rent. 

459.  Who  are  entitled  as  assignees 

of  the  reversion. 

460.  An   assignee  of  part   of  leased 

premises  is  liable  for  his  pro 
rata  share  of  the  rent  re- 
served in  the  lease,  but  he  is 
not  liable  for  the  entire  rent. 

461.  Where   a   lessee   makes   a   gen- 

eral assignment  of  all  his 
property. 

462.  The  assumption  by  an  assignee 

of  a  lease  of  all  the  obliga- 
tions and  liabilities  of  the 
assignor  creates  a  privity  of 
contract. 

463.  What    constitutes    an    assump- 

tion of  covenants  by  as- 
signee. 

IV.    Conditions  against  Assignment 
and  Sub-letting. 


464.  A  covenant  in  a  lease  against 

alienation  without  license  is 
at  least  as  old  as  Dumpor's 
case. 

465.  That    an    assignment    contrary 
.     to  a  restriction  in  a  lease  is 

not  absolutely  void,  but  void- 
able only. 

466.  An    ordinary   covenant   against 

sub-letting  and  assignment  is 
not  broken  by  a  transfer  of 
the  leased  premises  by  opera- 
tion of  law. 

467.  The  rule  is  universally  admit- 

ted that  a  covenant  not  to 
assign  a  lease  is  not  broken 
by  an  underletting. 


XX 


TABLE    OF    CO>TTENTS. 


SEC. 

468.  A   covenant   not   to    assign   or 

sub-let  is  not  necessarily 
broken  because  some  one 
other  than  the  lessee  shares 
in  the  benefits. 

469.  Change  in  business  relations  as 

breach  of  covenant  not  to 
sub-let. 

470.  Rule  in  Dumpor's  case. 


SEC. 

471.  In  the  United   States  the  rule 

in  Dumpor's  case,  while  sub- 
ject to  some  adverse  criti- 
cism, has  generally  been  re- 
ceived as  settled  law. 

472.  Special  license  to  assign  or  sub- 

let. 

473.  If  an  assignee  is  led  to  act  on 

the  assumption  that  the  as- 
signment will  not  be  relied 
upon  as  a  ground  for  forfei- 
ture. 


CHAPTEE  VII. 


TERMINATION   OF   LEASES. 


I.   Disclaimer  "by  Tenant.  sec, 

SEC.  485, 

474.  Introductory. 

474a.  Effect    of   repudiation    of   ten- 
ancy. 

475.  The  most  certain  general  test 

of   the   sufficiency   of   a    dis-     486. 
claimer    to    create    a    forfei- 
ture. 

476.  Generally,  attornment  or  deliv- 

ery of  possession  to  a  stran-     487. 
ger  or  adverse   claimant,  or 
any  act  disavowing  the  title 
of  the  landlord.  488. 

477.  Conveyance  by  tenant. 

478.  By  matter  of  record. 

479.  By  deed  recorded.  489. 

480.  Payment  of  rent.  490. 

481.  Mere  words  can  never  work  a 

forfeiture    of    an    estate    for 

life  or  for  years.  491. 

II.   Forfeiture  for  Breach  of  Con- 
dition. 

492. 

482.  Forfeitures   are    also    incurred 

by  the  breach  of  express  or 
conventional   conditions. 

483.  Necessity  for  re-entry.  493. 

484.  How  affected  by  statutes. 


An  option  to  claim  an  estate 
for  breach  of  condition  is 
suflSciently  expressed  by  en- 
try or  acts  equivalent  there- 
to. 

That  a  condition  in  a  lease 
calling  for  a  forfeiture  is  to 
be  strictly  construed  against 
the  lessor. 

The  mere  breach  of  a  covenant 
by  the  tenant  can  give  the 
landlord  no  right  of  reentry. 

A  breach  of  an  implied  cove- 
nant in  a  lease  such  as  by 
the  commission  of  waste. 

Acts  of  sub-tenant. 

The  general  doctrine  that  equi- 
ty will  never  lend  its  aid  in 
exacting  a  penalty. 

Under  certain  circumstances  a 
court  of  equity  may,  without 
violating  any  settled  rules,  re- 
lieve against  a  forfeiture. 

Only  in  exceptional  cases  will 
equity  relieve  against  a  for- 
feiture  caused   by   a   failure 
to  repair  or  insure. 
Emblements. 


TABLE    OF    CONTENTS. 


yxi 


SEC. 

494.  A    possibility,    right    of    entry, 

thing  in  action,  cause  of  suit 
or  title  for  condition  broken 
could  not  be  granted  or  as- 
signed over  at  common  law. 

495.  A  landlord  is  not  bound  to  de- 

clare a  forfeiture  for  breach 
of  a  condition,  as  he  may  in- 
sist on  the  tenant  fulfilling 
his  obligations  under  the 
lease. 

496.  Waiver    of   ground    for    forfei- 

ture. 

497.  One  common  mode  of  effecting 

a  waiver  is  by  the  receipt  of 
rent  due  under  the  forfeited 
lease. 

498.  The  mere  reception  of  rent  ac- 

crued before  the  time  for  the 
termination  of  the  tenancy 
is  not  a  waiver  of  the  notice 
to  quit  nor  a  renewal  of  the 
lease. 

499.  That  lessors  are  indulgent  and 

accommodating,  allowing  a 
default  to  continue. 

500.  The    doctrine    of    waiver    does 

not  apply  when  the  covenant 
broken  is  a  continuing  one. 

501.  Liability  for   rents  subsequent 

to  a  forfeiture. 

III.   Effect  of  Non-payment  of  Rent. 

502.  The  right  to  enter  for  non-pay- 

ment of  rent  is  not  an  inci- 
dent of  a  lessor's  estate  at 
common  law. 

503.  Necessity  for  demanding  rent. 

504.  An    express    stipulation    in    a 

lease  dispensing  with  the  re- 
quirement for  a  demand  for 
rent  is  valid. 

505.  Damages  from  an  alleged  tres- 

pass by  a  landlord  will  not 
constitute  such  a  legal  set- 
off against  an  unpaid  quar- 
ter's rent  that  it  will  prevent 
a  forfeiture  for  non-payment 
of  rent. 


SEC. 

506.  Arizona. 

507.  Arkansas. 

508.  California. 

509.  Colorado. 

510.  Connecticut. 

511.  Florida. 

512.  Georgia. 

513.  Illinois. 

514.  Indiana. 

515.  Iowa. 

516.  Kansas. 

517.  Massachusetts. 

518.  Michigan. 

519.  Minnesota. 

520.  Mississippi. 

521.  Missouri. 

522.  Nebraska. 

523.  New  Hampshire. 

524.  New  Jersey. 

525.  New  York. 

526.  North  Carolina. 

527.  North  Dakota. 

528.  Oregon. 

529.  Oklahoma. 

530.  Pennsylvania. 

531.  Rhode  Island. 

532.  South  Carolina. 

533.  Vermont. 

534.  Virginia. 

535.  West  Virginia. 

536.  Wisconsin. 

537.  Wyoming. 


lY.  Surrender. 


538. 


A  surrender  is  a  yielding  up 
of  an  estate  for  life,  or  years, 
to  him  who  hath  the  immedi- 
ate estate  in  reversion  or  re- 
mainder. 

A  surrender  may  be  effected 
by  express  words  or  it  may 
be  implied  from  the  conduct 
of  the  parties. 

Executed  agreement. 
541.  Cancellation     and     destruction 
of  lease. 


539. 


540. 


xxn 


TABLE   OF    CONTENTS. 


SEC. 

542.  A  common  method  of  effecting 

a  surrender  of  a  term  for 
years  by  operation  of  law  is 
by  the  substitution  of  a  new 
lease. 

543.  The    doctrine    of    Thomas    v. 

Cook. 

544.  The     foregoing     doctrine     has 

been  restricted  in  its  appli- 
cation by  a  subsequent  Eng- 
lish case. 

545.  Change  in  terms. 

546.  Leases  in  futuro. 

547.  Where   the   tenant   leaves  the 

land  and  abandons  the  pos- 
session. 

548.  The  delivery  of  the  key  by  the 

tenant  and  keeping  it  by  the 
landlord  are  not  sufficient  to 
show  a  surrender. 

549.  After    an    unauthorized    aban- 

donment by  a  tenant  the 
landlord  may,  by  taking 
proper  precautions,  relet  to 
another  without  creating  a 
surrender  by  operation  of 
law. 

It  is  essential  that  the  landlord 
notify  his  tenant  that  his  re- 
sponsibility for  the  deficien- 
cy in  rent  will  continue. 

Consent  of  tenant  implied. 

Rights  of  sub-tenants. 

The  question  whether  negotia- 
tions and  circumstances 
amounted  to  a  surrender. 


550. 


551. 
552. 
553. 


v.  Restoration  of  Possession  to 
Landlord. 

554.  Duty  of  tenant  to  yield  up  pos- 

session. 

555.  It  often  happens  that  a  tenant 

who  intends  to  quit  at  the 
end  of  his  term  is  not  able 
to  complete  his  arrangements 
promptly  and  desires  to  re- 
main a  short  time. 


SEC. 

556.  As  the  law  stood  before  modi- 

fied by  statute,  a  wide  scope 
of  action  was  allowed  to  an 
owner  in  using  force  to  re- 
cover possession  of  his  prop- 
erty. 

557.  A    forcible    entry    within    the 

meaning  of  the  forcible  en- 
try and  detainer  act  is  one 
accompanied  with  some  cir- 
cumstance of  force  or  vio- 
lence of  the  person. 

558.  Civil   liability   of   landlord    re- 

gaining possession  by  force. 

559.  Trespass  for  assault  and   bat- 

tery against  landlord. 

560.  Where  a  tenant  is  legally  enti- 

tled to  possession  and  the 
landlord  forcibly  enters  on 
him. 

561.  The   rule  allowing  the  use  of 

force  to  recover  possession 
of  real  estate,  which  makes 
the  landlord  a  law  unto  him- 
self, is  not  conducive  to  good 
business   principles. 

562.  Forcible     entry    and     detainer 

distinguished  from  summary 
process. 

563.  The    action    of    unlawful    de- 

tainer can  be  maintained  on- 
ly where  the  relation  of 
landlord  and  tenant  subsists 
between  the  parties  to  the 
action. 

564.  Statutory  penalty  for  holding 

over. 

565.  A  bill  in  equity  is  not  the  ap- 

propriate remedy  to  obtain 
possession  of  premises  from 
a  tenant  holding  over. 

566.  Form  of  judgment  in  summary 

process. 

VI.  Emblements. 

567.  The  term  emblements  is  used 

to  designate  not  only  certain 


TABLE   OF    CONTENTS. 


xzm 


SEC. 

products  of  the  soil,  but  also 
the  right  of  a  tenant  to  take 
and  carry  away  such  prod- 
ucts after  his  tenancy  has 
ended. 

568.  During  the  continuance  of  his 

holding  a  tenant's  right  to 
emblements  is  undoubted. 

569.  The  doctrine  of  emblements  is 

founded  entirely  on  the  un- 
certainty of  the  termination 
of  the  tenant's  estate. 

570.  The   common-law   rule   is   that 

every  one  who  has  an  un- 
certain estate  or  interest  in 
land,  if  his  estate  determines 
by  act  of  God  before  sever- 
ance of  the  crop,  shall  have 


emblements,  or  they  go  to 
his  executor  or  adminis- 
trator. 

571.  An   executor  or  a  lessee  of  a 

tenant  for  life  is  entitled  to 
crops  which  were  planted 
during  his  lifetime  but  did 
not  mature  till  after  his 
death. 

572.  Rights    of   lessee    under   lease 

subject  to  a  prior  lien. 

573.  An  outgoing  tenant  in  agricul- 

ture is  not  entitled  to  ma- 
nure made  on  the  farm,  even 
though  it  is  made  by  his  own 
cattle  and  from  his  own  fod- 
der. 


CHAPTER  VIII. 


RIGHTS    AND    LIABILITIES    OF    THE    PARTIES. 


I.     Landlord's     Responsibility     for 
Good  Condition  of  Premises. 

SEC. 

574.  The     well-established     general 

rule  is  that,  upon  a  demise 
of  premises,  there  is  no  im- 
plied warranty  or  implied 
condition  as  to  fitness. 

575.  Oral  evidence  of  warranty. 

576.  Demise  of  dwelling-houses. 

577.  Furnished  house. 

578.  Exceptions  to  rule. 

579..  Liability   of   landlord   for   per- 
sonal injuries  to  tenant. 

580.  Fraud  a  basis  of  landlord's  lia- 

bility. 

581.  When  there   are  concealed   de- 

fects attended  with  danger  to 
an  occupant,  and  which  a 
careful  examination  would 
not  discover,  known  to  the 
lessor. 

582.  Landlord's    duty    to    learn    de- 

fects). 


583.  Unsanitary  condition  of  leased 

house. 

584.  Duty     on     landlord     to     warn 

against  infection. 

585.  Liability  to  guests  of  the  ten- 

ant. 

586.  Injuries  to  property  of  the  ten- 

ant. 

587.  By  statute  in  Georgia. 

77.     Liability  Imposed   by  Lessor's 
Agreement  to  Repair. 

588.  Lessor's  obligation  to  repair. 

589.  An  obligation  to  repair  cannot 

be  placed  on  the  landlord 
without  clear  and  explicit 
language. 

590.  Payment    by    landlord    for    re- 

pairs made  by  tenant. 

591.  Exempting  lessee  from  obliga- 

tion to  repair. 


XXIV 


TABLE   OF    CONTENTS. 


592.  The     landlord's     responsibility 

for  damages  caused  by  bis 
failure  to  perform. 

593.  Notice  to  landlord  of  need  of 

repairs. 

594.  Another  ground  on  which  the 

landlord's  freedom  from  re- 
sponsibility can  be  placed  is 
the  doctrine  of  contributory 
negligence. 

595.  Rights  conferred  on  third  per- 

sons by  a  covenant  to  repair. 

596.  Liability  of  landlord  for  unsafe 

repairs. 

597.  Repairs  effected  through  agent 

or  independent  contractor. 

598.  Non-performance   of   landlord's 

voluntary  promise  to  repair. 

III.   Liability  for  'Nuisance. 

599.  The  occupier,  and  not  the  own- 

er, is  bound,  as  between  him- 
self and  the  public,  to  keep 
buildings  and  other  struc- 
tures abutting  on  the  high- 
way and  street  in  repair. 

600.  Injuries  on  abutting  sidewalks. 

601.  Injuries  from  falling  articles. 

602.  Snow  and  ice. 

603.  Landlord   and   tenant  both   re- 

sponsible. 

604.  Necessity  for  request  to  abate 

nuisance. 

605.  A  lessor  is  not  liable  for  a  nui- 

sance created  and  main- 
tained on  the  premises  by 
the  tenant. 

606.  Moreover,    a    landlord    is    not 

liable  for  injuries  resulting 
from  an  improper  use  of  the 
demised  premises  by  the  ten- 
ant. 

607.  The  landlord  is  liable  for  the 

damage  caused  when  the 
premises  were  let  with  the 
want  of  repair  or  the  nui- 
sance complained  of  already 
existing. 


SEC. 

608.  Injuries  on  public  wharves. 

609.  Collapse  of  building. 

610.  Statutory  nuisances. 

611.  What  constitutes  a  reletting. 

lY.    Premises    Occupied    ty    More 
than  One  Tenant. 

612.  Obligation  to  repair  roof. 

613.  Duty  as  to  sidewalks. 

614.  Duty  of  landlord  as  to  common 

passageways. 

615.  There    are    other    decisions    in 

which  the  reasoning  is  di- 
rectly opposed  to  the  princi- 
ples just  laid  down. 

616.  To  make  a  landlord  liable  for 

injuries  caused  by  water 
flowing  from  a  closet. 

617.  To  whom  this  duty  extends. 

618.  Duty  of  landlord  to  strangers. 

619.  What   constitutes   a   fulfilment 

of  the  landlord's  duty. 

620.  The  place   where  the  accident 

occurs  is  not  material,  pro- 
vided it  was  on  a  common 
platform  or  passageway. 

621.  Defective  carpeting  of  passage- 

ways. 

622.  Repairs  interfering  with  enjoy- 

ment. 

623.  Liability  of  landlord  for  negli- 

gence of  janitor. 

624.  A  tenant  of  a  part  of  a  building 

is  bound  to  exercise  due  care 
in  the  use  and  control  of  his 
part  of  the  premises. 

y.   Responsibility  for  Waste. 

625.  Waste  may  be  defined  to  be  any 

act  or  omission  of  duty  by  a 
tenant  of  land  which  does  a 
lasting  injury  to  the  free- 
hold. 

626.  With   respect   to   the   mode   of 

procedure  by  which  a  tenant 
was  made  to  account  for  the 
waste  committed  by  him. 


TABLE    OF    CONTENTS. 


XXV 


627.  At   common   law,   a   tenant   at 

will  was  punishable  for  vol- 
untary waste,  but  not  for  per- 
missive waste. 

628.  Independent     of     an     express 

agreement  on  the  part  of  a 
lessee,  the  law  imposes  on 
him  an  obligation  to  treat 
the  premises  in  such  a  way 
that  no  substantial  injury 
shall  be  done  to  the  property. 

629.  A  tenant  is  only  bound  to  make 

tenantable  repairs,  and  is  not 
liable  for  the  ordinary  "wear 
and  tear"  of  the  premises. 

630.  Where  the  parties  to  a  lease  of 

real  property  have  expressly 
covenanted  to  repair. 

631.  On  a  demise  of  farming  lands  a 

covenant  is  raised  by  opera- 
tion of  law  that  they  shall  be 
used  as  such  and  cultivated 
in  a  husbandlike  manner. 

632.  A  tenant,  whether  rightfully  in 

possession  or  not,  cannot, 
without  the  consent  of  the 
landlord,  make  material 
changes  or  alterations  In  a 
building  to  suit  his  taste  or 
convenience. 

633.  The  cases  in  the  country  relied 

on  to  show  an  amelioration 
of  the  strict  English  rule. 

634.  The     intent     or     motive     with 

which  a  tenant  acts  is  imma- 
terial in  determining  what 
constitutes  waste. 

635.  A   tenant   for   years   who   cuts 

standing  timber  for  the  pur- 
pose of  sale. 

636.  Where    wild    timber    land    is 

leased  for  farming. 

637.  It  is  the  duty  of  a  tenant  for 

life  to  cause  all  taxes  as- 
sessed against  his  estate  dur- 
ing the  tenancy  to  be  paid. 

638.  When  waste   is  threatened,  an 

injunction  to  prevent  it  is 
the  proper  remedy. 


639.  Forfeiture  of  the  place  wasted 

and  treble  damages  were  the 
punitive  measures  provided 
by  the  Statute  of  Gloucester. 

VI.   Actions  Relative  to  Possession. 

640.  The   common-law    rule    is    that 

actual  or  constructive  posses- 
sion is  necessary  to  support 
an  action  of  trespass  quare 
clausum. 

641.  However,  a  qualification  of  the 

foregoing  rule  permits  the 
landlord,  while  a  tenant  is  in 
possession,  to  maintain  tres- 
pass on  the  case. 

642.  In    determining    whether    the 

landlord  or  tenant  or  both 
may  recover  damages  for  in- 
jury to  real  estate,  the  gen- 
eral rule  applies  that  wher- 
ever a  legal  right  is  violated 
the  owner  of  such  right  is  en- 
titled to  action  therefor. 

643.  If  a  tenant  be  deprived  of  his 

leasehold  interest  in  conse- 
quence of  the  appropriation 
by  the  public  to  public  uses 
of  the  property  upon  which 
his  leasehold  estate  rests,  it 
cannot  be  doubted  that  he  is 
deprived  of  his  property. 

644.  According  to  common  law  rules 

of  pleading,  not  only  must 
the  fact  that  the  plaintiff  is 
a  reversioner  appear,  but  the 
extent  of  the  reversion, 
whether  it  is  for  years  or  for 
life  or  in  fee. 

645.  A  landlord  has  no  such  interest 

in  the  growing  crops  of  his 
tenant  as  to  enable  him  to 
maintain  an  action  against  a 
person  who  injures  the  crop. 

646.  Tenants^  at  will  and  by  suffer- 

ance. 


XXVI 


TABLE    OF    CONTENTS. 


SEC. 


647.  An  action  of  trespass  by  the 
landlord  will  not  lie  against 
a  tenant  pending  the  term, 
because  the  wrong  which  is 
the  gist  of  the  action  is  an 


offense  against  the  actual 
possession  and  right  of  pos- 
session, and  these  are  in  the 
tenant. 


CHAPTEE  IX. 


EENT   AND   ITS   RECOVERY   BY   ACTION. 


I.   Nature  of  Rent. 

SEC. 

648.  Rent  has  been  defined  generally 

to  be  a  return  or  compensa- 
tion for  the  possession  of 
some  corporeal  inheritance. 

649.  A  fee  farm  rent  arises  where 

the  rent  is  created  by  deed 
and  the  fee  is  granted. 

II.   Actions  to  Recover  Rent. 

650.  Remedies  for  recovering  rent. 

651.  The    statutory    action    for    use 

and  occupation  Is  of  the  na- 
ture of  assumpsit  at  common 
law  on  an  implied  promise, 
and  is  not  an  action  ex  de- 
licto. 

652.  The   statute   providing   a   rem- 

edy for  the  recovery  of  rent, 
by  action  of  assumpsit  for 
use  and  occupation,  limits  it 
to  cases  where  the  agreement 
is  not  by  deed. 

653.  The  whole  action  for  trespass 

for  mesne  profits  is  a  con- 
trivance for  awkward  con- 
struction. 

654.  An  action  for  use  and  occupa- 

tion cannot  be  maintained  ex- 
cept where  the  relation  of 
landlord  and  tenant  exists. 

655.  "While  the  law  will  imply  the 

relation  of  landlord  and  ten- 
ant from  the  fact  of  the  oc- 
cupancy of  the  premises  with 


SEC. 

the  consent  of  the  owner, 
this  implication  may  be  re- 
butted. 

656.  Recovery  of  crop  rents. 

657.  If  there  is  no  actual  ouster  or 

eviction  of  one  tenant  in 
common  by  the  other,  neither 
is  liable  to  the  other  for  mere 
use  and  occupation. 

658.  That  rent  is  an  incident  to  the 

reversion,  and  that  whoever 
is  entitled  to  the  reversion  at 
the  time  the  rent  becomes 
payable  is  of  right  entitled 
to  it. 

659.  A  sub-tenant  is  not  answerable 

to  the  original  lessor  for  the 
rental,  as  there  is  neither 
priority  of  estate  nor  prior- 
ity of  contract  between  them. 

660.  Where  the  fact  of  an  agency  is 

not  disclosed  at  the  time  an 
agent  enters  into  a  contract 
of  lease  for  his  principal. 

661.  A  covenant  to  pay  rent  creates 

no  debt  or  legal  demand  for 
rent  until  the  time  stipulated 
for  payment  arrives. 

662.  An  undertaking  in  writing  at- 

tached to  a  lease  between 
landlord  and  tenant  by  which 
a  third  person,  without  ex- 
pressing any  consideration, 
agrees  to  become  surety. 

663.  Alterations  in  amount  of  rent 

and  mode  of  payment. 


TABLE    OF    CONTENTS. 


XXVll 


SEC. 

664.  A  power  of  attorney  contained 

in  a  lease  to  confess  judg- 
ment for  rent  due  and  inter- 
est is  valid. 

665.  The   only   defenses  against   an 

action  for  rent  reserved  in  a 
valid  lease  are  eviction,  re- 
lease and  surrender  of  the 
term. 

666.  Interest    is    recoverable    as    of 

right  upon  contracts  in  writ- 
ing to  pay  money  upon  a  day 
certain. 

III.   Apportionment. 

667.  By  the  general  rule  of  the  com- 

mon law,  rent  may  be  appor- 
tioned as  to  estate,  but  not  as 
to  time. 

668.  When   part   of   a    reversion   is 

sold,  the  law  will  apportion 
the  rent. 

669.  Where  a  lessee  assigns  a  part 

of  his  interest,  the  rent  may 
be  apportioned  between  the 
parties  holding  the  premises. 

670.  The  rent  which  follows  the  re- 

version as  an  incident  is  the 
rent  which  falls  due  subse- 
quent to  the  transfer. 

671.  In   most  states   of  the   United 

States  there  are  statutes  pro- 
viding for  apportionment  in 
case  the  estate  of  the  lessor 
is  determinable. 

IT.   Set-Off  and  Recoupment. 

672.  The  cost  of  repairs  made  by  a 

tenant  with  the  consent  of 
the  landlord  and  for  which 
the  landlord  agreed  to  pay. 

673.  The  extent  of   the   right  of   a 

tenant  entering  or  remaining 
in  possession  of  the  premises 
after  the  failure  of  the  land- 
lord to  repair  is  to  recoup. 


674.  Furthermore,  a  lessee  sued  for 

rent  may  recoup  in  damages 
for  a  false  allegation  of  the 
landlord. 

y.    Abatement  of  Rent. 

675.  The     destruction     by     fire     of 

buildings  upon  leased  prem- 
ises does  not  relieve  the  les- 
see from  his  obligation  upon 
an  express  covenant  to  pay 
rent. 

676.  When    premises    have    burned 

down  and  the  landlord  has 
collected  insurance,  a  court 
of  equity  will  not  prevent 
him  from  collecting  the  rent. 

677.  The   general   rule   of   the   com- 

mon law,  as  stated  above,  is 
predicated  upon  the  assump- 
tion that  an  interest  in  the 
land  or  soil  upon  which  the 
burned  buildings  stood 
passed  under  the  lease. 

678.  In  Nebraska  there  has  been  a 

vigorous  protest  against  the 
common-law  rule  of  contin- 
ued liability  on  express  cove- 
nants after  the  destruction 
of  the  premises. 

679.  A   provision   that,    if   premises 

are  destroyed  by  fire,  rent 
shall  be  suspended  until  they 
shall  be  put  in  proper  condi- 
tion for  use. 

680.  A  case  where  a  leased  building 

is  torn  down  under  power  of 
eminent  domain  to  widen  a 
street. 

681.  In  many  jurisdictions  the  rule 
of  the  common  law  as  to  con- 
tinued liability  for  rent  after 
destruction  of  the  premises 
has  been  abolished  or  modi- 
fied by  statutes. 


XXVlll 


TABLE  OF  CONTENTS. 


CHAPTEE  X. 


ESTOPPEL    TO    DENY    LANDLORD  S    TITLE. 


SEC. 

682.  Modern  rule  of  estoppel  to  deny 

title  between  landlord  and 
tenant. 

683.  Where   a   lessee    has    had    full 

benefit  of  his  term,  he  is 
estopped  to  deny  the  capacity 
or  power  of  the  lessor  to  exe- 
cute. 

684.  To  allow  a  tenant  to  object  to 

the  right  of  joint  lessors  to 
maintain  a  joint  action  to  re- 
cover the  premises. 

685.  A  tenant  at  will  equally  with  a 

tenant  for  years  or  from  year 
to  year. 

686.  Occupation  under  a  void  or  im- 

properly executed  lease. 

687.  A  disability  to  contract  of  one 

who  enters  upon  land  by  per- 
mission of  another  does  not 
relieve  him  from  the  obliga- 
tion of  returning  the  posses- 
sion. 

688.  A  tenant  cannot  deny  the  land- 

lord's title  while  remaining 
in  possession  after  the  ex- 
piration of  his  term. 

689.  Purchase    of    adverse    title    by 

tenant. 

690.  An  owner  of  land  or  one  under 

obligation  to  pay  taxes  there- 
on, cannot  acquire  a  tax  title 
so  as  to  defeat  incumbrances. 

691.  The  rule  that  denies  to  a  ten- 

ant the  right  to  dispute  his 
landlord's  title  cannot  be  so 
extended  as  to  take  away 
from  him  the  right  to  prove 
exactly  what  his  relationship 
to  the  landlord  originally 
was. 

692.  The    estoppel    upon    a    tenant 

only  extends  to  the  land  in- 
cluded in  the  lease. 


SEC. 

693.  The   operation   of  the   general 

rule  of  estoppel. 

694.  The  parties  may  by  their  agree- 

ment waive  the  rule  of  law 
that  a  tenant  cannot  deny  his 
landlord's  title. 

695.  After    the    expiration    of    his 

lease  a  tenant  may  disclaim 
and  disavow  his  tenancy. 

696.  Some  overt  act  is  necessary  to 

make  a  tenant's  holding  ad- 
verse. 

697.  The  effect  of  a  possession  pre- 

vious to  the  acceptance  of  a 
lease  on  the  right  to  dispute 
the  title. 

698.  In   California  an   exception   to 

the  general  rule  is  made. 

699.  The    relation    of   landlord   and 

tenant,  once  established,  at- 
taches to  all  who  may  suc- 
ceed to  the  possession 
through  or  under  the  tenant. 

700.  That  the  estoppel  inures  both 

as  to  its  benefit  and  burden 
to  privies  in  law,  in  blood 
and  in  estate. 

701.  The  burden  is  on  the  tenant,  in 

an  action  for  the  rent  or  to 
recover  possession  of  the 
premises,  to  establish  that 
the  case  falls  within  some  ex- 
ception of  the  general  rule 
stated. 

702.  Where  the  tenant  has  been  in- 

duced to  accept  the  lease  by 
misrepresentation,  fraud  or 
trick  practiced  upon  him  by 
the  lessor,  he  is  not  estopped. 

703.  Showing  transfer  or  expiration 

of  landlord's  title. 

704.  A    tenant    may    purchase    his 

landlord's  title  at  an  execu- 
tion sale. 


TABLE    OF    CONTENTS. 


XXIX 


SEC. 

705.  After   a  judgment   of   eviction 

has  been  obtained  against  a 
tenant,  he  may  proceed  to 
buy  in  and  set  up  the  adverse 
title  of  a  stranger. 

706.  An  evicted  tenant  may  take  a 

new  lease  from  the  party 
evicting  him. 

707.  Although  it  is  well  established 

that  a  tenant  cannot  volun- 
tarily attorn  to  an  adverse 
claimant. 


708.  Estoppel  does  not  bar  a  lessee 

from  exercising  a  power  of 
eminent  domain. 

709.  The  attornment  of  a  tenant  to 

a  third  person  does  not  have 
the  effect  of  making  the  pos- 
session of  the  tenant  the  con- 
structive possession  of  the 
stranger  to  whom  he  attorns. 


CHAPTEE  XI. 


FIXTURES. 


SEC. 

710.  The  general  rule  of  law  is  that 

whatever  is  fixed  to  the  soil 
becomes  a  part  of  the  realty. 

711.  The  original  doctrine  was  that 

fixtures  were  generally  re- 
garded as  immovable. 

712.  Fixtures   which    would    be    de- 

stroyed in  removal. 

713.  Agreements  as  to  removal. 

714.  If  a  grantee  of  the  reversion  is 

injured  by  an  agreement 
which  entitles  the  tenant  to 
remove  buildings  or  fixtures. 

715.  The  agreement  allowing  remov- 

al must  be  made  before  the 
building  is  erected. 

716.  In    the    absence    of    a    special 

agreement,  a  tenant  under  a 
lease  for  a  specific  term  must 
ordinarily  remove  his  fix- 
tures during  the  term. 

717.  Where  a  right  of  removal  con- 

ferred by  agreement  is  con- 
ditioned on  the  performance 
of  all  the  undertakings  in  the 
lease. 

718.  Effect  of  renewal   on   right  to 

remove  fixtures. 

719.  Time  for  removal  under  agree- 

ment. 


SEC. 

,720.  Moreover,  there  is  good  author- 
ity for  the  position  that  the 
rights  conferred  by  an  agree- 
ment for  removal  are  not 
lost  by  the  acceptance  of  a 
new  lease. 

721.  Removal    during    extension    of 

term. 

722.  A   lessor   may   by   estoppel   be 

precluded  from  claiming  fix- 
tures and  improvements. 

723.  A    mortgagee    from    a    tenant 

stands  in  no  better  position 
than  the  tenant. 

724.  The     term     improvements     as 

used  to  describe  the  additions 
made  to  leased  premises. 

725.  Fixtures  erected  by  the  tenant 

for  the  purpose  of  carrying 
on  his  trade. 

726.  As  a  rule,  a  dwelling  house  or 

similar  structure  erected  on 
leasehold  land  is  deemed  a 
part  of  the  realty. 

727.  The  strict  rule  that  a  building 

becomes  a  part  of  the  realty 
is  relaxed. 

728.  Fixtures  used  for  agricultural 

purposes. 


TABLE  OF  OASES. 


IReferences  are  to  Sections.'} 


Abbey  Homestead  Asso.  v.  Wil- 

lard  476 

Abbott  V.  Bosworth  72 

V.  Jackson  604,  607 

V.  Land  &c.  Co.  130,  132 

Abby  V.  Billups  392 

Abeel  V.  Hubbell  221 

V.  RadclifE  343 

Abercrombie  v.  Redpath  430 

Aberdeen  Coal  &c.  Co.  v.  Evans- 

ville  539 
Abrahams  v.  Tappe  482 
Abrams  v.  Sheehan  422,  430 
V.  Watson  361,  505 
Accidental  &c.  Ins.  Co.  v.  Mac- 
kenzie 688 
Acker  v.  Witherell  442 
Ackerman  v.  Lyman  2,  27 
^ckland  v.  Lutley  261 
Adair  v.  Bogle  140,  369,  370 
Adam  v.  Arnold  660 
Adams  v.  Beach  446 
V.  Bigelow  671 
V.  Boelger  78 
V.  Burke  447 
V.  echoes            206,  208,  268,  304 
V.  Fletcher  600 
V.  French  658 
V.  Gibney  349 
V.  Goddard  376,  429,  659 
V.  McKesson  48,  49 
V.  Martin  686 
V.  Werner  353 
Adams  Express  Co.  v.   McDon- 
ald 201 
Adler  v.  Mendelson  209 
Adreon  v.  Hawkins  462 
Agar  V.  Winslow  358 
Agate  V.  Lowenbein  632 
V.  Lowenstein  474a 
Agnew  V.  Sexton  664 
V.  Whitney  724 
A.  G.  Rhodes  &c.  Co.  v.  Weeden  161 
Ahern  v.  Steele  604 
Aiken  v.  Blaisdell  121 
V.  Smith  46,  48 
Ainsworth  v.  Backus  389 


Ainsworth  v.  Moriah  Lodge 

115 

V.  Ritt 

677 

V.  Williams 

61 

Aitkin  v.  Young 

160 

Albert  v.  State 

608 

Albin  V.  Riegel 

572 

Alcorn  v.  Morgan 

59, 

255 

Alderson  v.  Marshall 

682, 

696 

V.  Miller 

702 

Aldrich  v.  Reynolds 

572 

Alexander  v.  Archer 

2 

V.  Bishop 

140, 

369 

V.  Buffington 

89 

V.  Fisher 

635, 

636 

V.  Harris 

252 

V.  Hodges 

471, 

500 

V.  Rhodes 

596 

V.  Tolleston  Club 

104, 

114 

V.  Touhy  376,  495,  496,  497 

V.  Warrance  649 

Alger  V.  Kennedy  110,  355 
Alleghany  Oil  Co.  v.  Bradford 

Oil  Co.  483 

Allen  V.  Bartlett  201,  213,  699 

V.  Bicknell  558 

V.  Bryan  430,  658 

V.  Carpenter  230 

V.  Chatfield  682 

V.  Culver  331,  333,  392,  673 

V.  Dent  420,  496 

V.  Gates  713 

V.  Hall  705 

V.  Holkins  5 

V.  Howe  392 

V.  Keilly  121,  556 

V.  Kennedy  711 

V.  Lambden  57 

V.  Logan  127 

V.  Mansfield  175 

V.  Paul  474a,  699 

V.  Pell  324 

V.  Smith  616 

V.  Wooley  424 

Allenspach  v.  Wagner  388 

Allison  V.  Thompson  555 

Almand  v.  Scott  50 

Almy  V.  Allen  373 


XXXI 


XXXll 


TABLE    OF    CASES. 


[References  are  to  Sections.'] 


Almy  V.  Greene 
Alperin  v.  Earle 
Alston  V.  Grant 
Alsup  V.  Banks 
Alton  V.  Midland  R. 


121,  453 
620 
586 
111 
595 


Alwood  V.  Ruckman      47,  50,  52,  53 
Alworth  V.  Gordon 

264,  272,  274,  297 

Ambrose  v.  Root  561 

American  &c.  Co.  v.  Peoria  &c. 

Co.  120 

V.  Turner  421,  422 

Ames  V.  Moir  75 

V.  Norman  88 

V.  Schuesler  201,  202 

Amick  V.  Brubaker  175 

Ammidown  v.  Ball  107 

Amory  v.  KannofEsky  538,  543 

V.  Melvin  416,  417 

Amsden  v.  Atwood 

180,  201,  204,  555,  661 

V.  Blaisdell  182 

Amter  v.  Conlon  6 

Anderson  v.  Bentley  640 

V.  Comeau  163 

V.  Critcher  72,  164,  651 

V.  Darby  89 

V.  Gray  699 

V.  Hammon  638 

V.  Hapler  635 

V.  Harris  164 

V.  Harwood  412 

V.  Hayes  581 

V.  Prindle  180,  217 

V.  Robbins  667 

V.  Simpson  160 

V.  Strauss  572 

V.  Swift  375 

V.  Winton  354,  365 

Andreon  v.  Hawkins  661 

Andrew's  Case  321 

Andrew  v.  Carlile  98 

Andrews  v.  Jones  631 

V.  Kinsel  596 

V.  Woodcock  694 

Angell  V.  Egger  53 

Anonymous  439 

Ansell  V.  Robson  461 

Anthony  v.  Butler  165 

V.  New  York  &c.  R.  Co.      71,  164 

Antoni  v.  Belknap  727 

Antrey  v.  Antrey  171 

Appleton  V.  Buskirk  556 

V.  Campbell  122 

V.  O'Donnell  99 

Appling  V.  Odom  46 

Archer  v.  Blalock  587 

Arden  v.  Pullen  404 

Ardesco  Oil  Co.  v.  Richardson      397 

Ards  V.  Watkin  430 

Areline  v.  Ridenbaugh  38 


Arey  v.  Imson  31 

Armington  v.  Stelle  135 

Armour  &c.  Co.  v.  Des  Moines 

Pork  Co.  550 

Arms  V.  Burt  58 

Armstrong  v.  Clark  650 

V.  Crilly  102 

V.  Cummings  648 

V.  Kattenhorn  160 

V.  Maybee  392 

V.  Wheeler  442 

Arneson  v.  Spawn  640,  642,  644 

Arnold  v.  Bright  125 

V.  Clark  592 

V.  Lyman  462 

V.  Nash  254 

V.  Woodard  689 

Arnot  V.  Alexander  337 

Arnsby  v.  Woodward  464,  497 

Arras  v.  Richardson  121 

Arthur  v.  Vanderplank  447 

Ashbrook  v.  Dale  121,  122,  124 

Ashby  V.  Ashby  391,  712 

Ashley  v.  Ashley  641 

V.  Warner  170 

V.  Young  445 

Aspdin  V.  Austin  319 

Astor  V.  Hoyt  332,  459 

V.  Lent  442 

V.  Miller  458,  460 

Astry  V.  Ballard  637 

Atherstone  v.  Huddleston  87 

Atkins  V.  Chilson  380,  491 

V.  Sleeper  119 

V.  Temple  631 

Atkinson  v.  Cole  267 

Atlanta  &c.  R.  Co.  v.  McHan  190 

Atlantic  Dock  Co.  v.  Leavitt  77,  318 

Attaway  v.  Hoskinson  165 

Attersoll  v.  Stevens  626 

Attorney-General  v.  Backhouse       91 

V.  Baliol- College  91 

V.  Life  &  F.  Ins.  Co.  443 

V.  United  Kingdom  &c.  424 

Atwood  V.  Cobb  38 

V.  Norton  152 

Auer  V.  Penn  548,  549 

Aull  Sav.  Bank  v.  Aull  428,  652,  654 

Auriol  V.  Mills  447,  650 

Austin  V.  Ahearne  84 

V.  Field  675,  677 

V.  Harris  438 

V.  Hudson  River  R.  Co.  627 

V.  Huntsville  &c.  Co.  641 

V.  Thomson  190,  446 

Autrey  v.  Autrey  658 

Auworth  V.  Johnson  628 

Averill  v.  Sawyer  132,  133 

V.  Taylor  144 

Avery  v.  Daugherty  660 

V.  Doughety  349,  365 


TABLE   OF    CASES. 


XXXUl 


{References  are  to  Sections.J 


Aydlett  v.  Pendleton 
Aylesford,  Case  of 
Ayres  v.  Birtch 
V.  Draper 

B 


388 
160 
559 
267 


Babcock  v.  Albee  271 

V.  Kennedy  422 

V.  Scoville  458,  460,  669 

Bachelour  v.  Gage  447 

Backus'  Appeal  346 

Backus  V.  Sternberg  215,  217 
Bacon  v.  Bowdoin 

5,  102,  141,  143,  146 

V.  Brown    195,  202,  206,  232,  548 

V.  Combes  140 

V.  Howell  34 

V.  Park  420,  491 

V.  Waller  119 
V.  Western  Furniture  Co. 

503,  514 

Badcock  v.  Hunt  414 
Bagley  v.  Columbus  &c.  R.  Co. 

567,  715 

Bailey  v.  Campbell  3,  13,  690 

V.  Ferguson  47,  50 

V.  Fillebrown  53 

V.  Kilburn  688 

V.  Richardson    332,  429,  455,  459 

V.  Wells  448,  455 

V.  White  323 

Bain  v.  McDonald  152 

Baird  v.  Evans  673 

Baker  v.  Allen  605 

V.  Hale  682 

V.  Jeffers  667 

V.  Jordan  568 

V.  McClurg  712 

V.  Pratt  682 

Baldwin  v.  Kerliu  98 

V.  Morgan  108 

V.  Munn  140,  369 

V.  Skeels  371 

V.  Temple  698 

V.  Van  Vorst  491 

V.  Walker  71,  164,  421 

Baley  v.  Deakins,  1,  5 

Ball  V.  Cullimore  186 

V.  Dunsterville  320 

V.  Lively  2 

V.  Wyeth  69 

Ballance  v.  Peoria  99,  100,  109 

Ballard  v.  Walker  74 

Ballentine  v.  Poyner  632,  636 

Balls  V.  Westwood  655 

Bally  V.  Wells  330 

Balmain  v.  Shore  86 

Baltimore   &c.   R.   Co.  v.   Pum- 

phrey  592 

V.  Rose  608 

v.  West  180,  199 

JojiiES  L.  &  T. — iii 


Banbury  v.  Sherim  201,  204 

Bancroft  v.  Wardwell        3,  654,  655 

Bandlow  v.  Thieme  625 

Bangor  v.  Rowe  610 

Bank  v.  Getchell  6 

V.  Mersereau  84 

Bank  &c.  v.  Wise  658,  670 

Banks  v.  Haskie  339,  343 

V.  White  675 

Bannon  v.  Mitchell  642 

Barber  v.  Harris  88 

Barclay  v.  Steamship  Co.  330 

V.  Wainwright  378 

Bard  v.  Elston  159 

Barge  v.  Schiek  344 

Barghman  v.  Portman  356 

Barhydt  v.  Burgess  446,  447 

Barker  v.  Troy  £:c.  R.  Co.  136 

Barlow  v.  Bell  255 

V,  Dahm  682 

V.  Wainwright 

148,  180,  192,  199,  261 

Barium  v.  Berger  241 

Barnard  v.  Godscull  447 

V.  Pope  657 

Barnes  v.  Barnes  96 

V.  Hogate  322 

v.  Ludington  137a 

V.  Northern  Trust  Co. 

423,  438,  439 

v.  Shinholster  29,  34,  654 

Barnett  v.  Barnes  136,  496 

v.  Feary  341 

Barney  v.  Cain  507 

V.  Keith  58,  321,  349 

V.  Patterson  444 

Barneycastle  v.  Walker  368 

Barnhart  v.  Boyce  392 

Barnum  v.  Landon  164 

Barr  v.  Doe  172 

V.  Kimball  126,  128 

Barret  v.  Blagrave  638 

Barrett  v.  Bell  101 

V.  Boddie  354,  355,  356,  588 

V.  Cox  175,  197 

V.  Jefferson  12 

V.  Johnson  59,  67 

V.  Trainor  439 

Barrie  v.  Smith  496 

Barrington  &c.  Asso.  v.  Watson     464 

Barron  v.  Marsh  654 

V.  Richard  331 

Barry  v.  Briggs  125 

V.  Page  158 

Bartlett  v.  Greenleaf  502 

V.  Haviland  710 

V.  Perkins  626,  640 

V.  Robinson  701 

Bascom  v.  Dempsey  640 

Baskin  v.  Seechrist  702 

Bass  V.  Rollins  408 


XXXIV 


TABLE    OF    CASES. 


[References  are  to  Sections.Ji 


Bass  V.  West 
Batchelder  v.  Dean 
Bateman,  Ex  parte 
Bates  V.  Dunham 
Batterman  v.  Pierce 
Bauer  v.  Knoble 


433 

112,  113 

389 

89 
368,  673 
487,  488 


Bauernschmidt  &c.  Co.  v.  McCol- 

gan                                  716,  718,  721 

Baugher  v.  Wilkins  349,  361 

Baughman  v.  Reed  50,  54 

Baxter  v.  Browne  74 

V.  Bush  92 

V.  Lansing  491 

V.  Mattox  118 

V.  Smith  87 

V.  Taylor  640 

Bay  State  Bank  v.  Kiley  263 

Bayly  v.  Lawrence  678 

Beach  v.  Grain  392 

V.  Farish  676 

V.  Gray  661 

V.  Morgan  164 

V.  Nixon  115 

Beal  V.  Bass  502 

V.  Boston  &c.  Co.  422,  425 

Beale  v.  Knowles  88 

Beale  &  Taylor's  Case  592 

Beall  V.  White  543 

Bean  v.  Edge  10 

V.  Fitzpatrick  355 

Beardman  v.  Wilson  446 

Beardsley  v.  Morrison  410 

Bears  v.  Ambler  600 

Beattie  v.  Parrott  Silver  &c.  Co.  456 

Beaty  v.  Gibbons  573 

V.  Jones  682 

Beavers  v.  Trimmer  604,  644 

Becar  v.  Flues         143,  152,  153,  539 

Bechtel  v.  Cone  496 

Beck  V.  Phillips  74 

Becker  v.  De  Forest  365 

V.  Werner  496,  502 

Beckwith  v.  Howard 

57,  322,  382,  428 

Beddoe  v.  Wadsworth  332 

Bedford  v.  Kelly  81 

V.  McElherron  310 

V.  Terhune          442,  446,  455,  543 

Bedingfield  v.  Onslow  645 

Beecher  v.  Duffield  356,  652 

Beecher  v.  Parmell  558 

Beers  v.  St.  John  727 

Bees  V.  Williams  543 

Beham  v.  Ghio  677 

Beidler  v.  Fish  366,  546 

Beiler  v.  Devoll  152,  272 
Belden  v.  Union  Warehouse  Co.  332 
Belding  v.  Texas  Produce  Co. 

201,  202 
Belfour  v.  Weston  324,  404,  405,  676 

Belinski  v.  Brand  494,  504 


Bell     V.     American 
League 

V.  Baker 

V.  Golding 

V.  Norris 
Beiler  v.  Robinson 
Bellows  V.  McSinnis 
Beman  v.  Rufford 
Bemis  v.  Becker 

V.  Wilder 
Benavides  v.  Hunt 
Benedict  v.  Everard 

V.  Morse 
Beneteau  v.  Stubler 
Benfey  v.  Congdon 


Protective 

443 
126 
101 
661 
342 
631 
9 
432 

465,  466 
482 
458 

186,  428 
586 

203,  296 


Benjamin  v.  Benjamin    19,  115,  563 

Bennecke  v.  Insurance  Co.             497 

Bennet  v.  Bittle  364 

V.  Pixley  323 

Bennett  v.  Herring  471,  494 
V.  Robinson 

220,  222,  229,  230,  296 

V.  Scutt  38 

Bennock  v.  Whipple  192,  239,  478 

Benson  v.  Suarez  596 

Bentley  v.  Adams  18 

V.  Atlanta  643 

V.  Sill  365 

Benton  v.  Schulte  151 

Benzein  v.  Robinett  666 

Bergland  v.  Frawley  326 

Bergman  v.  Roberts  697,  700 

Berkeley  v.  Hardy  660 

Berkowsky  v.  Cahill  201,  206 

Bernal  v.  Hovious  54 

Berner  v.  Gebhardt  299 

Berrey  v.  Lindley  199,  255 

Berrington  v.  Casey  349,  367a 

Berry  v.  Van  Winkle  374,  379 

Bertie  v.  Flagg  584 

Bertles  v.  Nunan  87,  88 

Bertram  v.  Cook  688,  689 

Best  V.  Jenks  87 

Bettison  v.  Budd     412,  690,  703,  704 

Betts  V.  Dick  465 

Betz  V.  Maxwell  258,  270,  290 

Bevans  v.  Briscoe  570,  571 

Beverly  v.  Lincoln  &c.  Co.              652 

Biddle  v.  Hussman  658,  668 

V.  Ramsey  346 

V.  Vandeventer  117 

Bigelow  V.  Collamore  392 

V.  Jones  654 

V.  Willson  119 

Biggs  V.  Brown  569 

V.  Ferrell  606 

V.  Stueler  210,  212,  549 

Billings  V.  Canney  146 

V.  Tucker  10 

Billingslea  v.  Ward  160 

Bingham  v.  Honeyman  98 


TABLE    OF    CASES. 


XXXV 


[References  are  to  Sections.l 


Binney  v.  Chapman 
Birch  V.  Wright 


682,  703 
3,  25,  183,  422 


Birckhead  v.  Cummins 
Bird  V.  Earle 

V.  Greville 
Birmingham  v.  Rogers 
Bishop  V.  American  &c.  Co. 

V.  Babcock 

V.  Blair 

V.  Clark 

V.  Doty 

V.  Howard 
Bishop  of  Bath's  Case 
Bissell  V.  Lloyd 
Bittenger  v.  Baker 
Blachford  v.  Frenzer 
Black  V.  Delaware  &c. 

V.  Maitland 
Blackenship  v.  Blackwell 
Blackman  v.  Kessler 
Blackmore  v.  Boardman 
Blackwood  v.  Tanner 
Blain  v.  Everitt 
Blair  v.  Hardin 

V.  Rankin 
Blake  v.  Baker 

V.  Clark 

V.  Coats 

V.  Concannon 

V.  Dick 

V.  Fash 

V.  Howe 

V.  Preston 

V.  Ranons 

V.  Sanderson 
Blanchard  v.  Bowers 

V.  Raines 
Blaney  v.  Hoke 
Blantire  v.  Whitaker 
Blasdell  v.  Souther 
Bleecker  v.  Ballou 

V.  Smith 

Bless  V.  Jenkins      157,  269,  274,  554 
Blight  V.  Rochester  699,  700 

Bliss  V.  Bange  561 

V.  Collins  668 

Blish  V.  Harlow  272 

Blitch  V.  Edwards  31 

Block  V.  Smith  34 

Blood  V.  Spaulding  607 

Bloom  V.  Richards  307 

Bloomer  v.  Merrill  681 

Blue  V.  Sayre  476 

Blue  Stone  Coal  Co.  v.  Bell  488 

Blum  V.  Robertson  29,  183,  254 

Blumenberg  v.  Myres  215,  446 

Blumenthal  v.  Bloomingdale         197 
Blundell  v.  Brettargh  346 

Bly  V.  Edison  &c.  Co.  642 

Blythe  v.  Gately  417 

Board  &c.  v.  Grant  726 


149 

28 

578 

47 

120 

701 

88 

29 

48 

203 

112 

404,  410,  612 

570,  572 

455 

Canal  Co.      9 

599 

701,  702 

128 

330,  343 

555 

638 

350 

352,  435 

415 

102,  677 

52 

92 

126,  410,  548,  576 

59 

690 

654,  655 

126,  576,  584 

438,  447,  456 

180,  261 

34 

138 

424,  700 

136 

415 

471,  498 


137a, 

598, 

215, 


147, 

78,  672, 

455,  456, 


Board  &c.  v.  Herrington 

V.  Streeter 
Board   of  Directors  v.   Chicago 

&c.  Co. 
Board  of  Supervisors  v.  Cowgill 
Boardman  v.  Mostym 
Bobb  V.  Syenite  Granite  Co. 
Bodkin  v.  Arnold  697, 

Bodman  v.  Murphy 
Bodwell  Granite  Co.  v.  Lane 
Boefer  v.  Sheridan 
Bogert  V.  Dean 
Boggs  V.  Black 
Bohannons  v.  Lewis 
Boisseau  v.  Fuller 
Bold  V.  O'Brien 
Boley  V.  Barutio 
Bollenbacker  v.  Fritts 
Boiling  V.  Stokes 
Bolton  V.  Landers 

V.  Tomlin 
Bonaparte  v.  Thayer 
Bonetti  v.  Treat 
Bonnell  v.  Allen 
Bonner  v.  Welborn 
Bonnewell  v.  Jenkins 
Bonney  v.  Foss 
Bonsall  v.  McKay 
Boom  Co.  V.  Patterson 
Boone  v.  Chatfield 

V.  Eyre 

V.  Stover 
Boot  V.  Wilson 
Booth  V.  Clark 

V.  Cleveland  &c.  Co 

V.  Gaither 

V.  Merriam 
Boraston  v.  Green 
Borcherling  v.  Katz 
Bordereaux  v.  Walker 
Borderre  v.  Den 
Bordman  v.  Osborn 
Boreel  v.  Lawton 
Borland's  Appeal 
Borman  v.  Sandgren 
Born  V.  Stafford 
Boston  V.  Binney 

V.  Worthington 
Boston  &c.  R.  Co.  v.  Ripley 

V.  Boston  &c.  R.  Co. 
Boston  Block  Co.  v.  BufRngton 
Boston,  C.  &  M.  R.  Co.  v.  Boston 

&c.  R.  Co. 
Boston  Clothing  Co.  v 


137a, 
555, 


41 


576, 


424, 


351. 

444, 


2,  3,  652, 


355, 


Bostwick  V.  Losey 
Boteler  v.  Espen 
Botsford  V.  Morehouse 
Botting  V.  Martin 
Boudette  v.  Pierce 
Bourdereaux  v.  Walker 


Solberg 
137a, 


185, 


703 
420 

204 
20 
464 
641 
702 
389 
257 
627 
538 
310 
392 
143 
628 
28 
639 
415 
257 
148 
673 
462 
573 
•304 
138 
726 
369 
708 
378 
323 
,  59 
447 
443 
375 
108 
579 
569 
660 
439 
157 
661 
354 
456 
219 
703 
654 
380 
667 
446 
681 

468 

138 
410 
378 
541 
441 
251 
549 


XXXVl 


TABLE    OF    CASES. 


[References  are  to  Sections.} 


Bowdish  V.  Dubuque  697 

Bowe  V.  Hunking 

574,  576,  579,  581,  585 
Bowen  v.  Clarke  549 

V.  Haskell  543 

Bowers  v.  Cherokee  Bob  63 

Bowes  V.  East  London  &c.  Co.        91 
Bowman  v.  Bradley  20 

V.  Foot  483,  495,  498 

Bowser  v.  Colby  491 

Bowyer  v.  Seymour  535 

Boyce  v.  Bakewell  461 

V.  Graham  640 

V.  Guggenheim  359 

Boyd  V.  Douglass  726 

V.  Fraternity  Hall  Asso. 

464,  468,  469 

V.  McCombs  661 

V.  Pico  336 

V.  Talbert  171,  513 

Boyer  v.  Commercial  Bldg  Inv. 
Co.  360 

V.  Smith  688 

Bracket  v.  Norcross 
Brackett  v.  Goddard 

V.  Wait 
Bradbury  v.  Wright 
Bradford  Oil  Co.  v.  Blair 

V.  Patten 
Bradish  v.  Schenck 
Bradley  v.  Bailey 

V.  Brigham 

Chicago,  M.  &  St.  P.  R.  Co 
Covel 


V. 
V. 
V. 
V. 
V. 


657 

573 

87 

415 

328 

342 

48 

571 

368 

371 

251 

576 

653 

201,  202,  206,  210 

453 

169 

575 

18,  42,  59 

346 

353 

255,  256 

466 


Goicouria 

McDaniel 

Slater 
V.  Walker 
Brady  v.  Flint 
Braley  v.  Henry 
Branch  v.  Doane 
Brand  v.  Frumveller 
Brande  v.  Grace 
Brandenburg  v.  Reitman 
Brandon  v.  Aston 
Brandt  v.  Phillippi  367 

Branger  v.  Manciet  319,  361 

Brant  v.  Vincent  197 

Branton  v.  O'Briant  216 

Brashear  v.  Chandler  397 

Bratt  V.  Woolston  345 

Brattle  Square  Church  v.  Grant  446 
Braythwagto  v.  Hitchcock  197 

Bream  v.  Dickerson  328,  332,  377 
Breckenridge  v.  Parrott  328,  458 
Brecknock  Co.  v.  Pritchard  392 

Breeding  v.  Taylor  427 

Breese  v.  McCann  673 

Breher  v.  Breese  136 

Bremer  v.  Bigelow  692 

Bresler  v.  Darmstaetter  555 


Brett  V.  Cumberland  447 

Breuckmann  v.  Twibill  549 

Brewer  v.  Craig  29,  654 

V.  Dyer  439,  462 

V.  Keeler  689 

V.  Knapp  554 

V.  M'Gowen  23 

V.  National  &c.  Asso.  541 

V.  Stevens  16 

V.  Winchester  139 

Brewster  v.  De  Fremery 

404,  576,  588,  612 

V.  Gracey  494 

V.  Hill  171 

V.  Kidgill  415 

V.  Kitchin  415 

V.  McNab  25 

Breyfogle  v.  Wood  547 

Briar  v.  Robertson  152 

Bridgers  v.  Dill  645 

Bridgham  v.  Tileston  439,  658 

Bridgman  v.  Wells  199 

Brierley  v.  Palmer  271 

Briggs  V.  Austin  568 

V.  Hall  365 

V.  Hervey  274 

V.  Partridge  660 

V.  Roth  561 

V.  Thompson  357,  364 

Brigham  v.  Rogers  132 

Bright  V.  McOuat  215,  228 

Briles  v.  Pace  151,  440 

Brinckerhoff  v.  Phelps  369 

Brinkley  v.  Hambleton  451 

Bristor  v.  Burr  559 

Brittin  v.  Wilder  87 

Brohawn  v.  Van  Ness  72 

Bromley  v.  Aday  279 

Bronson  v.  Coffin  331 

Brock  V.  Berry  228 

V.  Dole  632,  638 

Brockway  v.  Rowley  322 

V.  Thomas  159,  160,  375 

Brooke  v.  O'Boyle  558 

Brookhaven  v.  Baggett  42 

Brooks  V.  Reynolds  381 

V.  Rogers  497,  635,  647 

Brosman  v.  Kamer  447,  448 

Broughton  v.  Conway  "67 

Brouwer  v.  Jones  382,  431 

Brown  v.  Adams  656 

V.  Beatty  558 

V.  Bragg  168 

V.  Bridges  641 

V.  Burtinshaw  540 

V.  Butler  659 

V.  Carkeek  109,  373 

V.  Cavins  495,  549 

V.  Collins  624 

V.  Crump  628 

V.  Engel  29 


TABLE  OF  CASES. 


XXXVll 


{References  are  to  Sections.] 


Brown  v.  Holyoke  &c.  Co.  355 

V.  Kayser  174,  251,  261,  317 


V.  Keller 

689 

V.  Lincoln 

55 

V.  Parsons 

569 

V.  Schiappacasse 

66, 

358 

V.  Smith 

220, 

225 

V.  Thurston 

570 

V.  Toronto  Gen.  Hospital 

592 

V.  Vanhorn 

251 

V.  Woodworth 

45 

Browne  v.  Haseltine 

701 

V.  Raban 

464 

V.  Tighe 

343 

Brownell  v.  Welch         152, 

159, 

217 

Browning  v.  Browning 

149 

V.  Haskell 

83 

V.  Wright 

319, 

350 

Brozier  v.  Ansley 

46 

Bruce  v.  Fulton  Nat.  Bank 

375 

Bruckman  v.  Dry  Goods  Co. 

18 

Brugman  v.  Noyes 

382, 

383 

Brummell  v.  Macpherson 

470 

Brunswick  &c.  R.  Co.  v.  Hardey 

642 

Brunswick  &c.  Co.  v.  Spencer 

587 

Brunswick-Balke-Collender 

Co. 

V.  Rees 

613 

Brush  V.  Beecher 

116 

Bryan  v.  Atwater 

85 

V.  Whistler 

44 

V.  Winburn 

709 

Bryant  v.  Pugh 

50,  56 

V.  Sparrow 

647 

V.  Wells 

660 

Bryden  v.  Northrup 

383, 

384 

Buchanan  v.  Whitman 

119 

Buck  V.  Lewis 

548 

V.  Morrow 

140 

V.  Rodgers 

410 

Bucklen  v.  Cushman 

382 

Buckley  v.  Cunningham 

616 

Bucknam  v.  Bucknam 

684 

Buckner  v.  Warren 

502 

Buel  V.  Buel 

563 

Buell  V.  Cook                    141, 

142 

145 

Buerger  v.  Boyd 

675 

677 

Buesching  v.  St.  Louis  &c. 

Co. 

603 

Buffalo,  In  re 

725 

Buffalo  Co.  Nat.  Bank  v. 

Han 

sen 

540 

Buffum  V.  Deane 

668 

Buhl  V.  Kenyon 

151 

Bulkley  v.  Devine 

99 

Bull  V.  Follett 

319 

Bullard  v.  Johnson 

422 

Bullen  V.  Denning 

63 

Bullock  V.  Dommitt 

392 

V.  Grinstead 

375 

Bunker  v.  Pines 

319 

Bunton  v.  Richardson 

227 

Burbank  v.  Dyer 

236 

Burden  v.  Knight  159 
V.  Thayer           421,  422,  667,  670 

Burdick  v.  Cheadle  579,  595 

Burgess  v.  Rice  682 

Burhans  v.  Van  Zandt  413,  690 

Burk  V.  Hollis  716 

Burke  v.  Tindale  121 

Burkhard  v.  Mitchell  201,  202 

Burkhardt  v.  Yates  78 

Burkhart  v.  Tucker  29 

Burkitt  V.  Harper  378 

Burks  V.  Bragg  588 

Burnes  v.  Fuchs  404 

V.  McCubbin  487 
Burnett  v.  Lynch 

80,  318,  319,  411,  449,  451 

V.  Rich  682 

V.  Thompson  163 

Burnham  v.  Hubbard  448 

V.  Roberts  652 

Burns  v.  McDonald  597 

V.  Nash  562 

Burr  V.  Spencer  166 

V.  Stenton  349,  350,  351 

Burris  v.  Jackson  118 

Burt  V.  French  513 

V.  Merchants'  Ins,  Co.  680 

Burton  v.  Barclay  458 

V.  Scherpf  44 

Bush  V.  Cole  369 

V.  Rawlins  135 

Buschman  v.  Codd  129 

V.  Wilson  679 

Bussman  v.  Ganster         59,  675,  676 

Buswell  V.  Marshall  73 

Butler  V.  Baker  656 

V.  Cowles  651 

V.  Manny  323,  324 

V.  Page  715 

V.  Powis  77,  IGO 

V.  Rice  21 

Butterfield  v.  Baker  53 

Butts  V.  Fox  256 

Buxbaum  v.  Dunham  423 

Byrane  v.  Rogers  420,  503,  504 

Byrne  v.  Beeson  691 

Byington  v.  Simpson  158 

Byrd  v.  Chase  650 

Byrne  v.  Van  Hoesen  90 


Cade  V.  Brownlee  171 

Cadwallader  v.  Lovece  33 

Cage  V.  Paxlins  67 

Cain  V.  Ginun  702 

Cairns  v.  Chabert  413,  690 
Cairo  &c.  R.  Co.  v.  Wiggins  Ferry 

Co.  203,  205 

Calderwood  v.  Brooks  254,  499 

V.  Pyser  707 


XXXYlll 

TABLE   t 

{References  a 

Caldwell  v.  Center 

11 

V.  Custard 

567 

V.  Harris 

682 

V.  Moore 

413 

V.  Slade 

599 

V.  Smith 

682 

Caley  v.  Portland 

464 

V.  Rogers 

519 

California  &c.  Co.  v.  Armstrong    630 
California  Ann.  Conf.  v.  Seitz 

377,  379 

Callaghan  v.  Hawks  322 

Callahan  v.  Loughran  588,  596 

Callan  v.  McDaniel  331 

Calvert  v.  Rice  635 

Camarillo  v.  Fenlon  702 

Cameron  v.  Little  661,  667 

Camley  v.  Stanfield  704 

Camp  V.  Camp  79,  696 

V.  Scott  486,  497 

Campau  v.  Lafferty  75,  126 

V.  Mitchell  209,  554 

V.  Shaw  90 

Campbell  v.  Campbell  688 

V.  Davis  709 

V.  Fetterman  682 

V.  Hampton  682 

V.  Nixon  501 

V.  Procter  190,  474a,  475 

V.  Shipley  484,  696 

V.  Shrum  319,  463 

V.  Stetson  659 

Canale  v.  Copello  438,  442 

Candler  v.  Mitchell       5,  7,  267,  274 

Cannan  v.  Hartley  548 

Canning  v.  Fibush  177,  255 

Cannon  V.  Barry     632,  636,  637,  638 

v.  Copeland  726 

V.  Hatcher  641 

V.  Ryan  267 

V.  Wilbur  368,  369,  485 

Caperton  v.  Stege  555,  719 

Capital  Brewing  Co.  v.  Crosbie     367 

Cardigan  v.  Armitage  63 

Carey  v.  Richards  155 

Cargar  v.  Fee  229,  288 

Cargil  V.  Thompson  459 

Carhart  v.  French  63 

V.  Ryder  128 

Carleton  v.  Redington  37,  604 

Carley  v.  Lewis  328,  331,  447 

Carlin  v.  Ritter       628,  716,  718,  721 

Carling  v  Purcell  154 

Carlton  v.  Williams  87 

Carman  v.  Mosier  116 

Carnegie  v.  Morrison  462 

Carnes  v.  Hersey  418 

Carney  v.  Mosher  154 

Carpenter  v.  Colins  191 

v.  GrifRn  10 

V.  Jones                 .  547,  567 


Carpenter  v.  Parker  707 

V.  Pocasset  Manuf.  Co.  454 

V.  Providence  &c.  Ins.  Co.        398 

v.  Thompson  688 

v.  United  States  29 

Carr  v.  Dodge  55,  131 

V.  Ellison  343 

Carraher  v.  Bell  498 

Carroll  v.  Ballanee  428 

V.  Rigney  640,  641 

V.  St.  John's  &c.  Soc.  78 

Carson  v.  Arvantes  540 

v.  Baker  32 

V.  Blazer  569 

v.  Broady  682 

V.  Crigler  703 

V.  Godley  576,  613 

Carstairs  v.  Taylor  612 

Carter  v.  Burr  669 

v.  Carter  413 

V.  Cummings  675 

V.  George  630 

V.  Hammett  440,  458,  461 

V.  Harlan  37,  45 

V.  Lacy  369 

V.  Scargill  324 

V.  Tippins  685 

V.  Youngs  413,  637 

Carver  v.  Gough  726 

Carey-Lombard  Lumber  Co.  v. 

Jones  378 

Cary  v.  Daniels  644 

V.  Thompson  101 
Cary  Hardware  Co.  v.  McCarty 

18,  36,  42 

Casey  v.  Gregory  163,  703,  704 

V.  Haurick  682,  689 

V.  King  168,  227 

Cassilly  v.  Rhodes  572 

Castleman  v.  DuVal  661 

Castro  V.  Gaffey  79 

Caswell  V.  Districh  48,  50 

Gate  V.  Blodgett  580 

Catlin  V.  Hayden  640 

V.  Washburn  257 

V.  Wright  499 

Cavanaugh  v.  Clinch  235,  555 

Cavis  V.  McClary  421 

Cayuga  R.  Co.  v.  Niles  39 

Center  v.  Davis  605 

V.  McQuesten  462 

Central  Mills  v.  Hart  1,  2,  3,  40 

Central  Railroad  v.  English  604 

v.  English  642 

Cesar  v.  Karutz  584 

Chadbourn  v.  Rahilly  65 

Chadbourne  v.  Straw  640 

Chadwick  v.  Marsden  63 

V.  Parker  503,  513 

Chalfin  V.  Malone  3 

Chalker  v.  Chalker  485 


TABLE   OF   CASES. 


XXXIX 


[References  are  to  Sections.'] 


Chalmers  v.  Smith  627,  628 

Chamberlain  v.  CoUinson  164 

V.  Godfrey  675,  677 

Chamberlin  v.  Brown  494 

V.  Donahue 

3,  5,  257,  474a,  654,  655 

V.  Godfrey  365 

Chambers  v.  Pleak  689 

V.  Ross  654 

Chandler  v.  Kent  71 

V.  McGinning  340,  341,  503 

V.  Pittsburgh  Glass  Co.  422 

Chapel  V.  Hull  631 

Chapin  v.  Billings  125 

V.  Dobson  130,  131 

V.  Foss  28 

Chapman  v.  Bluck  143,  144 

V.  Cawrey  561 

V.  Dunwell  70 

V.  Eames  50 

V.  Gray  167,  171 

V.  Harney  503 

V.  Hart  171 

V.  Kirby  502,  503,  513 

V.  McGrew  423,  430,  496 

V.  Tiffany  258 

V.  Towner  146,  251 

Charleston  &c.  R.  Co.  v.  Hughes   711 

Charsley  v.  Jones  578 

Charter  Oak  L.  Ins.  Co.  v.  Cum- 

mings  2 

Chase  v.  Barrett  50 

V.  Hazleton  625,  626,  636 

V.  McDonnell  49 

Chatard  v.  O'Donovan  20 

Chateau  v.  Singla  122 

Chatterton  v.  Fox  364,  369,  370 

Chauntler  v.  Robinson  612 

Cheairs  v.  Coats  365,  667,  668 

Cheatham  v.  Plinke  719 

Cheek  v.  Waldrum  88 

Cheetham  v.  Hampson  600 

Cheever  v.  Pearson       6,  36,  42,  112 
Cheney  v.  Bonnell  483 

V.  Newberry  146 

Cherokee  Strip  &c.  Asso.  v.  Cass 

&c.  Co.  7 

Cherry  v.  Stein  381 

Chesebrough  v.  Pingree  58,  102 

Cheshire  v.  Barrett  92 

Chesley  v.  Frost  62 

Chessman  v.  Whittemore  541 

Chestu  V.  Powell  578 

Chestnut  v.  Tyson  350,  361 

Cheuvront  v.  Bee  410 

Chew  V.  Lucas  369 

Chicago  V.  Peck  206 

Chicago  &c.  Co  v.  Browne  381 

Chicago  &c.  R.  Co.  v.  Linard        640 
V.  Perkins  205,  255 


Chicago  Attachment  Co.  v.  Davis 

&c.  Co.  440,  441,  456,  465 

Chicago  Warehouse  Co.  v.  Illi- 
nois &c.  Co.  360 
Chighizola  v.  Le  Baron  93 
Childers  v.  Lee                                 150 
V.  Talbott                    149,  150,  153 
Childs  V.  Clark                                   430 
V.  Hurd                                 716,  721 
V.  Kansas  City  &c.  R.  Co.         625 
Chilton  V.  Niblett                         29,  30 
Chipman  v.  Emeric         372,  471,  502 
Chowning  v.  Stanfield                       93 
Chretien  v.  Doney                    154,  337 
Christensen  v.  Pacific  Coast  &c. 

Co.  36 

Christine  v.  Whitehill  350 

Christopher  v.  Austin  324,  365 

V.  National  &c.  Co.  157 

Christy  v.  Tancred  227 

Chung  Yon  v.  Hop  Cheng 

17,  276,  308 
Church  V.  Brown  431,  464 

Church  Wardens  v.  Smith 

332,  334,  462 
Churchill  v.  Gronewig  539 

V.  Lammers  540,  553 

City  Council  v.  Moorhead  588 

City  of  London  v.  Mitford  339 

City  of  Providence  v.  St.  John's 

Lodge  346 

City  Power  Co.  v.  Fergus  Falls 

&c.  Co.  361 

Claflin  V.  Carpenter  36,  38 

Clancy  v.  Byrne  595 

Clapham  v.  Moyle  319 

Clapp  V.  Noble  267 

V.  Paine  255 

V.  Stoughton  88 

Claremont  v.  Carleton  109 

Clark  v.  Babcock  574,  588 

V.  Banks  566,  569 

v.  Barlow  666 

V.  Barnes  111 

V.  Butt  367,  367a 

V.  Clark       87,  138,  385,  654,  655 

V.  Coolidge  418 

V.  Everly  530 

V.  Ford  673 

v.  Harvey  570 

V.  Herring  433 

v.  Holden  634,  635 

v.  Hume  461 

V.  Jones  495 

V.  Keliher  263,  272 

V.  Middlesworth  637 

V.  Midland  &c.  Co.  675 

V.  Rhoads  114,  115,  169 

V.  Vannort  20 

Clarke  v.  Brookfield  485 


xl 


TABLE   OF    CASES. 


[References  are  to  Sections.'] 


Clarke  v.  Byne 

V.  Cobb 

V.  Camnings 

V.  Merrill 

V.  Samson 

V.  Spaulding 

V.  Thatcher 
Clason  V.  Bailey 
Clator  V.  Otto 
Clayton  v.  Blakey 
Clemence  v.  Steere 
Clemens  v.  Broomfield 

V.  Murphy 
Clemenston  v.  Gleason 
Clement  v.  Durgin 

V.  Gould 
Clemm  v.  Wilcox 
Clemson  v.  Trammell 
Clenighan  v.  McFarland 
Cleveland  v.  Bryant 
Cleveland  &c.  R.  Co.  v, 


703 

52,  53,  422 

489,  635 

337,  340 

321 

673 

219,  642 

387 

504 

148,  180,  217 

631,  632,  635 

75,  543 

717 

386 

45 

361 

682,  688 

393 

133 

140 

Mitchell 


331,  371,  438 

V.  Wood  448 

Cleves  V.  Willoughby  577,  578 

Clifford  v.  Atlantic  Cotton  Mills 

601,  602 

V.  Gressinger  34 

Clift  V.  Stockton  163 

Clifton  V.  Montague       404,  574,  591 
Cline  V.  Black  392 

Clinton  &c.  Co.  v.  Gardner 

201,  205,  206,  209 
Clinton  Wire  Cloth  Co.  v.  Gard- 
ner 206 
Cluett  V.  Sheppard  104 
Clun's  Case  661,  667 
Clyne  v.  Helmes  574,  576,  585 
Coale  v.  Hannibal  &c.  R.  Co.  627 
Coan  V.  Mole  180,  197 
Coats  V.  Chaplin  156 
Coatsworth  v.  Schoellkopf  375 
Cobb  V.  Arnold 

V.  Lavalle 

V.  Stokes 
Coburn  v.  Goodall 

V.  Palmer 
Cochran  v.  Ocean  Dry  Dock  Co. 

V.  Pew 


1, 


Cochrane  v. 


686 
109 
255,  564 
332,  461 
685 
105 
495 


v.  McCleary 

V.  Tuttle 
Cocker  v.  Cowper 
Cocking  V.  Ward 
Cockson  V.  Cock 
Codman  v.  Hall 

V.  Jenkins 

V.  Johnson 
Cody  V.  Quarterman 
Coe  V.  Clay 

V.  Hobby 


Justice  Min.  Co. 

137a,  138 

63 

24 

44,  45 

200 

331 

75,  121,  416 


652 
415 
149 
367 
543 


Coe  V.  Wilson 

Coffin  V.  City  of  Brooklyn 

V.  Lunt 

V.  Talman 
Cofran  v.  Shepard 
Coggs  V.  Bernard 
Cohen  v.  Barrett 

V.  Dupont 

V.  Habenicht 

V.  Kyler  654, 

Cohn  V.  Hill 

V.  Norton  367a,  369, 

Cohoon  V.  Kineon 
Coke  V.  Gutkese 
Colburn  v.  Morrill 
Colclough  v.  Carpeles 

113,  141,  142, 
Cole  V.  McKey 

v.  Maxfield 

v.  Potts 

V.  Wright 
Colegrave  v.  Dias  Santos 
Coleman  v.  Mabberly 
Coles  v.  Celluloid  Mfg.  Co.    675, 

v.  Coles 

V.  Peck 
Colhoun  V.  Wilson 
Collamer  v.  Kelley 
Collamore  v.  Gillis 
Collier  v.  Carlisle 

V.  Cunningham 

V.  Hyatt 

V.  Pierce 

V.  Sharpe 
Collins  V.  Canty 

V.  Hall 

V.  Hasbrouck 

V.  Karatopsky 

V.  Lewis 

V.  Moore 

V.  Whigham 
Collins  Mfg.  Co.  v.  Marcy      42, 
Collyer  v.  Collyer 
Colton  V.  Gorham 
Columbian  Oil  Co.  v.  Blake 
Combes  v.  Cadmus 
Combs  v.  Midland  Trans.  Co. 
Commagere  v.  Brown 
Commercial  Bank  v.  Pritehard 
Commonwealth    v.    Chesapeake 
&c.  R.  Co. 

v.  Cortner  119, 

V.  Dudley 

v.  Franklin  Ins.  Co. 

V.  Harrington 

V.  Haley  556, 

V.  Locke 

V.  Shattuck 

V.  Smith 

V.  Switzer 

V.  Weatherhead 


112,  587, 


496, 

355,  365, 

357, 


53 
351 
215 
332 

189 
596- 
562 

360 
410 
715 
391 
37a 
651 
582 
365 

143 
585 
694 
16a 
152 
716 
542 
681 

86 
34& 
133 
44& 
712 
709 
493 
600 
359 

34 
271 
66& 
497 
669 
361 
427 

34 

382 

3 

44g 

87 
637 

58 
123 
163 

163 

648 
557 
461 
122 
559 

12a 

557 
9 

610 
9 


TABLE   OF    CASES, 


xli 


[References  are  to  Sections.1 


Commonwealth  v.  Welcome 

V.  Wentworth 
Comstock  V.  Cavanaugh 

V.  Hitt 
Conant  v.  Brackett 
Condon  v.  Barr 

V.  Brockway 

V.  Sprigg 
Cone  V.  Corse 
Cones  V.  Barnes 

V.  Carter 

V.  Parker 
Coney  v.  Brunswick  &c.  Co. 
Congdon  v.  Brown 

V.  Cook 
Conger  v.  Duryee 

V.  Transportation  Co. 

V.  Weaver 


479 
120 
421 
463 
378 
227 
203,  205 
604 
91 
447 
358 
329 
644 
262 
558 
471,  497 
495 
369 

Congregational  Soc.  v.  Fleming  635 

V.  Walker  682 

Conkling  v.  Tuttle  296,  404,  652 

Conley  v.  Johnson  136 

Connell  v.  Female  &c.  Asylum       412 

V.  Richmond  48,  54 

Connelly  v.   Doe  541 

Conner  v.  Coffin  573 

V.  Jones  474a,  480 

V.   Shepherd  635 

Connor  v.  Bradley  484,  503 

Conrad  v.  Morehead       349,  488,  631 

V.  Saginaw  &c.   Co.  725 

Conrad  Seipp  &c.  Co.  v.  Hart      360 

Consolidated  Coal  Co.  v.  Peers 

36,  322,  455,  456,  463 

V.  Savitz  625 

V.  Schaefer  275,  486 

V.  Schmisseur  384 

Constantine  v.  Wake      328,  445,  648 

Consumers'   Ice   Co.   v.   Bixler 

447,  462 
Conway  v.  Starkweather  206, 

207,  209 
5,  699 
675,  678 
675,  677 
703,  706 
627 


Conwell  V.  Mann 
Coogan  V.  Parker 
Cook  V.  Anderson 

V.  Basom 

V.  Champlain  Transp.  Co 


V.  Cook 
V.  Creswell 
V.  Harris 
V.  Humber 
V.  Jones 
V.  Norton 


182,  190,  705 

262,  272,  682 

458 

23 

344,  446 

220 


V.  Sanitary  Dist.  &c.  718 

V.  Soule  410,  594,  673 

V.  South  Park  Comm'rs  7 

V.  Stearns  36,  37 

Cook  County  &c.  Co.  v.  Labahn 
Brick  Co.  69 

Cooke  V.  Brice  482.  504 

V.  England  400,  410 


Cooke  V.  Norris  215 

V.  Wise  666 

Coomber  v.  Howard  661 

Coombs  V.  Jordan  711 

Coomler  v.  Hefner  221,  236,  288 

Coon  V.  Brickett     497,  498,  503,  523 

Cooney  v.  Murray  133 

Cooper  V.  Adams  190 

V.  Blandy  697 

V.  Bramel  654 

V.  Cooper  87 

V.  Joy  340,  342 

V.  McGrew  54 

V.  Smith  689 

V.  Sunderland  562 

Coor  V.  Smith  572 

Copeland  v.  Goldsmith  663 

V.  Stephens  461 

V.  Parker  467 

Corbett  v.  Cochrane  232,  233 

Corby  v.  Brill  &c.  Co.  299 

V.  McSpadden  112,  170 

Cordes  v.  Miller  399 

Cordeviolle  v.  Redon  465 

Corey  V.  Bishop  573 

V.  Mann  588 

V.  Smalley  164 

Corle  V.  Monkhouse  569,  570,  571 

Cornell  v.  Dean  50 

Cornfoot  v.  Fowke  580 

Cornish  v.  Searell  697 

Corrigan  v.  Chicago  362,  680,  703, 

706 

Corson  v.  Berson  219 

V.  Mulvany  387 

Couch  V.  Ingersoll  323 

V.  McKeilar  655 

Coudert  v.  Cohn  199,  256 

Coughanour  v.  Bloodgood  707 

Coulson  V.  Whiting  580,  584 

Coulter  V.  Norton  352 

Coupe  V.  Piatt  614,  617 

Coupland  v.  Hardingham  604 

Courcier  v.  Graham  72 

Courne  v.   Hewes  34 

Cowan  V.  Henika  195,  514 

V.  Radford  Iron  Co.  174 

Cowell  V.  Lumley  675,  676 

V.  Springs  Co.  382 

Cowen  V.  Sunderland  574,  576,  581 

Cowles  V.  Kidder  37 

Coy  V.  Downie  675 

Coyne  v.  Feiner  141 

Cozens  v.  Stevenson  366 

Crabtree  v.  Hagenbaugh  322 

Craig  V.  Dale  569 
V.  Summers        417,  436,  446,  494 

Cram  v.  Thompson  152 

Cramer  v.  Groseclose  641 

Crandall  v.  Sorg  378,  513 

Crane  v,  Andrews  254 


slii 


TABLE    OF    CASES. 


[References  are  to  Sections.1 


Crane  v.  Batten  334 

V.  Brigham  725 

V.  Hardman  666 

V.  Patton  38 

Crawford  v.  Armstrong  663 

V.  Chapman  658 

V.  Jones  5,  363 

V.  Longstreet  74 

V.  Morris  98,  192 

Creech  v.  Crockett  221 

Creekmur  v.  Creekmur  695 

Creel  v.  Kirkham  51 

Creigh  v.  Heuson  682 

Crelghton  v.  Sanders  152,  159 

Crentz  v.  Heil  637 

Crescent  City  &c.  Co.  v.  Simpson    74 

Cressler  v.  Williams        12,  288,  701 

Creveling  v.  West  End  Iron  Co.    495 

Crews  V.  Pendleton  572 

Cripps  V.  Blank  227 

Critchfield  v.  Remaley  201,  204, 

251,  261 

Croade  v.  Ingraham  333 

Crocker  v.  Cunningham  54 

Crockett  v.  Althouse  687,  702 

V.  Crockett  636,  638 

Croft  V.  Lumley  497 

Cromie  v.  Hoover  716 

Crommelin  v.  Thiess  201,  202, 

210,  356,  365,  431,  551 

Cronin  v.  Watkins  329,  377 

Crooke  v.  Andrews  565 

Crookston  Co.  v.  Marshall  70 

Crosby  v.  Home  &  Danz  Co.  3 

V.  Loop  658,  668 

Crosdale  v.  Lanigan  37 

Cross  V.  Campbell  182 

V.  Freeman  84 

V.  McClenahan  564 

V.  Upson  442 

Crossley  v.  Maycock  138 

Crossthwaite  v.  Caldwell  365 

Croswell  v.  Crane  152,  661 

Crouch  V.  Fowle  321,  349,  350 

V.  Wabash  &c.  R.  Co.  497 

Crow  V.  Cann  566 

V.  Hildreth  141 

Crowe  V.  Riley  331,  431 

V.  Wilson  638,  639 

Cruger  v.  McLaury  525 

Crusoe  v.  Bugby  431,  446,  467 

Culbreth  v.  Smith  168,  171 

Culton  V.  Gilchrist  146 

Culver  V.  Hill  672 

V.  Kingsley  620 

Culverhouse  v.  Worts  422 

Cummings  v.  Perry  104 

Cunning  v.  Tittabawassee  Boom 

Co.  683 

Cunningham  v.  Baxley  171 

v.  Cambridge  Sav.  Bank  14 


Cunningham  v.  Holton  12,  190 

V.  Horton  293,  558,  647 

v.  Hurter  599 

V.  Pattee  86,  330,  343 

Curl  V.  Lowell  182 

Currey  v.  Davis  47,  53 

Currier  v.  Barker  260 

V.  Earl  185,  474a 

v.  Perley   192,  193,  195,  244,  251, 

259,  302 

Curry  v.  Schmidt  715 

Curtis  V.  Aspinwall  139 

V.  Cash  50 

V.  Galvin  186,  228,  558,  559 

V.  La  Grande  &c.  Water  Co.      37 

v.  Pierce  415 

V.  Smith  690 

V.  Spitty  460 

V.  Treat  2 

v.  Wheeler  446 

Curtiss  V.  Hoyt  646 

Curtner  v.  Lyndon  48 

Cvishing  v.  Kenfield  644 

Cutter  V.  Hamlen  583,  584 

V.  Powell  667 


D 


Dahm  v.  Barlow   474a,  475,  476,  497 

Dakin  v.  Allen  30,  655 

v.  Goddard  654 

V.  Williams  471 

Dalay  v.   Savage  600,  604,  607 

Dale  v.  Southern  R.  Co.  642 

Daley  v.  Quick  579 

Dalton  V.  Laudahn      2,  651,  652,  661 

Daly  V.  Wise  126 

Damainville  v.  Mann  458,  669 

Damb  v.  Hoffman  453 

Dame  v.  Dame  713 

Danforth  v.  Sargent  226 

V.  Stratton  566 

Daniels  v.  Brown  54 

V.  Cushman  40 

V.  Edwards  565 

V.  Pond  488,  573,  627 

V.  Richardson  669 

Dann  v.  Spurrier  340 

Darby  v.  Anderson  682 

Darcey  v.  Steger  414 

Darcy  v.  Askwith  625,  631 

D'Arcy  v.  Martyn  267,  271 

Dare  v.  Boylston  502 

Darling  v.  Hoban  339 

V.  Kelly  51,  53 

Darmstaetter  v.  Hoffman      328,  451, 

455 
D'Arras  v.  Keyser  387 

Dart  V.  Hercules  726 

Dartmouth  College  v.  Clough 

445,  446,  458,  650,  659 


TABLE    OF    CASES. 


xliii 


IBeferences  are  to  Sections.'] 


Dartual  v.  Morgan 
Dasher  v.  Ellis 
Dassance  v.  Cold 
Dater  v.  Earl 
Dausch  V.  Crane 
Davenant  v.  Bishop 
Davenish  v.  Moffatt 
Davenport's  Case 
Davenport  v.  Magoon 

V.  United  States 
David  v.  Ryan 
David  Stevenson  &c.  Co.  v. 

bertson 
Davidson  v.  Crump  Mfg.  Co 

V.  Ellmaker 

V.  Wallingford 
Davies  v.  Baldwin 

V.  Davies 

V.  Evans 
Daviess  v.  Myers 
Davis  V.  Brocklebank 

V.  Burrell 

V.  Cincinnati 

V.  Clancy 

V.  Byton 

V.  George 

V.  Gillian 

V.  Hemenway 

V.  Jewett 

V.  Lyman 

V.  McGrew 

V.  Morris 

V.  Moss 

V.  Murphy 

V.  Nash 

V.  Pollock 

V.  Schweikert 

V.  Smith 

V.  Taylors  Co 

V.  Thompson 


577, 


137a, 
192,  239, 


V.  Townsend 

V.  Watts 

V.  Wiley 

V.  Williams 
Davison  v.  Gent 
Dawson  v.  Linton 
Day  V.  Essex  Co.  Bank 

V.  Greenebaum 

V.  McAllister 

V.  Swackhamer 
Dayton  v.  Craik 

V.  Van  Doozer 
Dean  v.  Pall 

V.  Roesler 

V.  Walker 
Dean  &c.  v.  Pierce 
Deane  v.  Caldwell 

v.  Hutchinson 
Dearlove  v.  Herrington 
Deaver  v.  Randall 


650 
695 
663 
121 
709 
415 
256 
429 
632 
629 
392,  399 
Cu- 

83 

719 

83 

427 

242 

625 

474a 

689 

570 

420 

411 

640 

466 

675,  676 

635,  636 

19,  26 

644 

319 

698 

456 

716,  725 

270 

626,  641 

153 

388 

626 

343 

148,  185, 

254,  570 

36 

3 

324 

20,  682 

543 

413 

323 

442 

61 

334 

538,  539 

493 

114 

369 

463,  660 

654 

448 

726 

561 

214,  564 


Deaver  v.  Rice  53 

DeBow  v.  Colfax  570 

Decker  v.  Adams  303 

V.  McManus  254 

DeClercq  v.  Barber  &c.  Co.  415 
DeCoursey  v.   Guarantee   Trust 

&c.  Co.  668 

Deegan  v.  Neville  647 
De  Forest  v.  Byrne  331,  382,  383,  384 

De  Givesville  v.  Legg  417 

V.  Stolle  273 

Deglow  V.   Meyer  464,  465 

Deishler  v.  Golbaugh  374 

De  Jarnette  v.  McDaniel  695 

De  Lancey  v.  Ganong     481,  482,  486 

Delaney  v.  Flanagan  242 

V.  Root  51 

Delano  v.  Montague  207,  227 

Delashman  v.  Berry  339,  340 

Deller  v.  HofEerberth  599 
Demarest  v.  Willard 

331,  424,  425,  430,  658 

Demartini  v.  Anderson  122 

De  Medina  v.  Poison  200 

Demi  v.  Bossier  569 

De  Mott  V.  Hagerman  48 

Den  V.  Alexander  446,  699,  700 

V.  Ashmore  703 

V.  Blair  251,  257 

V.  Craig  502 

V.  Davis  696 

V.  Drake                      174,  251,  303 

v.  Hardenbergh  87 

V.  McKnight  482 

V.  Murray  700 

V.  Post  467,  487 

V.  Snowhill  251,  303 

V.  Westbrook  29 

Dendy  v.  Nicholl  497 

Dengler    v.    Michelssen  367,  456 

Denison  v.  Wertz  540 

Denn  v.  Barnard  111 

v.  Rawlins  183 

Dennett  v.  Penobscot  &c.  Co.        655 

Dennis  v.  Dennis  91 

Dennison  v.  Grove         126,  128,  674 

V.  Lee  666 

V.  Read  326 

Denny  v.  Marksbury  371 

Denton  v.  Strickland  9,  51 

De  Pere  Co.  v.  Reynen  437,  654 

De  Peyster  v.  Michael  649 

Dermott  v.  Jones  319,  392 

De  Ronde  v.  Olmsted  83 

Derrick  v.   Luddy  699,  701 

De  Rutte  v.  Muldrow  387 

Desloge  v.  Pearce  37.  41 

Des  Moines  R.   Co.   v.   Wabash 

R.  Co.  384 
Despard  v.  Walbridge 

202,  267.  555,  703 


xliv 


TABLE    OF    CASES. 


{References  are  to  Sections.'] 


De  Taslet  v.  Crousellat 

389 

Doe  V.  Bateman 

446 

Detroit    Savings    Bank 

V. 

Bel- 

V. 

Bell 

148,  199, 

217 

lamy 

261 

V. 

Benjamin 

144, 

146 

Deutsch  V.  Abeles 

607 

V. 

Bevan 

446 

Devacht  v.  Newsam 

703 

V. 

Biggs 

340 

Devine  v.  Lord 

221 

V. 

Birch 

495 

De  Vore  v.  Kemp 

53 

V. 

Bliss 

470,  473, 

500 

Dewey  v.  Payne 

151, 

441 

V. 

Bond 

486 

De  Witt  V.  Berry 

575 

V. 

Brawn 

444 

V.  Harvey 

86 

V. 

Brown 

421, 

697 

V.  Pierson 

360 

V. 

Bucknell 

25 

De  Wolf  V.  Martin 

700 

V. 

Burt 

101, 

110 

Dexter  v.  Manley 

63, 

353, 

369 

V. 

Carter 

466 

V.  Phillips 

18&, 

667 

V. 

Chamberlaine 

30 

Deyo  V.  Bleakley 

119 

V. 

Chaplin 

269 

Deyve  v.  Jamison 

496 

V. 

Clarke 

466 

De  Young  v.  Buchanan 

227 

V. 

Cooper 

480 

Diamond  v.  Harris 

675 

V. 

Crago 

198 

Dickey  v.  McCullough 

471 

V. 

David 

466 

Dickinson  v.  Goodspeed 

647 

V. 

Day 

15 

Dickinson  Co.  v.  Fitterling 

442 

V. 

Derry 

20 

Dickson  v.  Moffat 

F 

,  11 

V. 

Dixon 

340 

Diehl  V.  Lee 

548 

V. 

Dobell 

199 

Dieters  v.  St.  Paul  Gaslight  Co. 

624 

V. 

Dunbar 

272 

Dietz  V.  Schmidt 

453 

V. 

Edwards 

703 

Diffenderfer   v.   St.   Louis 

Pub. 

V. 

Evans 

85 

Schools 

343 

V. 

Flynn 

476 

Digby  v.  Atkinson 

202, 

203 

V. 

Francis 

697 

Diggle  V.  Boulden 

29 

V. 

Fuchan 

484 

Dike  V.  Greene 

346 

V. 

Geekie 

213 

Diller  v.  Roberts 

202 

V. 

Gladwin 

500 

Dillon  V.  Crook 

37 

V. 

Godwin 

486 

Dills  V.   Stobie 

540, 

545 

V. 

Goldwin 

265 

Dimock  v.  Van  Bergen 

554 

V. 

Gray 

272 

Dingley  v.  Buffum         190, 

641, 

716 

V. 

Gregory 

225 

Dircks  v.  Brant 

569 

V. 

Hawke 

466 

Disbrow  v.  Jones 

164 

V. 

Hazell 

253 

v.  Wilkins 

137a 

V. 

Hogg 

486 

Disdale  v.  lies 

186 

V. 

Hull 

257 

Ditch  V.  Vollhardt 

666 

V. 

Jackson 

183 

Diver  v.  Diver 

87 

V. 

Jones 

444,  471, 

632 

Dix  V.  Atkins 

5 

V. 

Lachenour 

699 

V.  Marcy 

159 

V. 

Laming 

24 

Dixon  V.  Haley 

227 

V. 

Lawder 

224 

V.  Niccolls       50,  52, 

53, 

658, 

670 

V. 

Lewis 

484 

V.  Smith 

227 

V. 

Lucas 

273 

Dobbin  v.  McDonald 

553 

V. 

Mclnnis 

85 

Dobbins  v.  Duquid 

369, 

370 

V. 

McKaeg 

254 

Dobson  v.  Culpepper 

682 

V. 

Masters 

504 

Dockham  v.  Parker 

52,  53 

V. 

Matthews 

261 

Dockrill  v.  Schenk 

271, 

420 

V. 

Miller 

30 

Dod  V.  Monger 

336 

V. 

Mills 

688 

Dodd  V.  Acklom 

538 

V. 

Morse 

340 

V.  Jones 

389 

V. 

Murless 

2 

442 

Dodge  V.  Lambert 

382 

384 

V. 

Ongley 

272 

273 

Dodson  V.  Hall 

118 

V. 

Parker 

480 

Doe  V.  Alexander 

484 

V. 

Pasquali 

480 

V.  Amey 

180, 

199 

V. 

Peck 

329 

V.  Austin 

700 

V. 

Pittman 

476 

V.  Bancks 

495 

V. 

Pyke 

429 

V.  Barton 

689 

697 

V. 

Raffan 

253 

TABLE   OF    CASES. 


xlv 


IReferences  are  to  8601(0718.] 


Doe  V.  Rees  496 

V.  Reynolds  479,  705 

V.  Richards  112,  174 

V.  Ries  142 

V.  Roberts  95 

V.  Sandham  404,  675 

V.  Shewin  471 

V.  Smith  142 

V.  Smythe  688 

V.  Stanion  257 

V.  Stennett  177,  203,  212 

V.  Stevens  486 

V.  Stratton  256 

V.  Summersett  269 

V.  Thomas  186,  188,  254 

V.  Thompson  98 

V.  Ulph  471 

V.  Walker  688 

V.  Walters  265 

V.  Wandlass  484,  503,  534 

V.  Watts  496 

V.  Weller  261 

V.  Wells  481 

V.  Whitcomb  653 

V.  Wiggins  697 

V.  Williams  2,  257 

V.  Wood  197 

V.  Woodbridge  500 

V.  Worsley  467 

Doggett  V.  Emerson  580 

Doherty  v.  Doe  131,  135 

Doidge  V.  Bowers  197 

Dolan  V.  Scott  180,  182 

Dole  V.  Thurlow  164 

Dolittie  V.  Eddy  19,  563 

Dollar  V.  Roddenberg  570,  572 

Dolph  V.  White  328 

Donahoe  v.  Rich  540 

Donaldson  v.  Wilson  585,  595 

Donelson  v.  Polk  320,  455,  456 

Donkersley  v.  Levy  543 

Donnelly  v.  Thieben  721 

Donner  v.  Ogilvie  620 

Donohue  v.  Chic.  &c.  Co.       199,  253 

V.  Kendall  614 

Doolan  v.  McCauley  93 

Dooly  V.  Stringham  632,  638 

Dorrance  v.  Jones  461 

V.  Scott  87 

Dorrell  v.  Johnson  228 

Dorrill  v.  Stephens  202,  666 

Dorsett  v.  Gray  571,  657 

Dorsey  v.  Moore  635 

Doss  V.  Craig  257 

Dossee  v.  East  India  Co.  176 

Dostal  V.  McCaddon  716 

Doty  V.  Burdick  474a 

V.  Gillett  659 

V.  Gorham  725 

V.  Heth  52,  53 

Dougal  V.  McCarthy  202 


Dougherty  v.  Chestnutt 

V.  Matthews 

v.  Seymour 
Douglas  V.  Fulda 

V.  Herms 

V.  Wilbur 
Douglass  V.  Anderson 

V.  Branch  Bank 

V.  Cross 

V.  Geiler 

V.  Murphy 

V.  Parker 

V.  Wiggins 
Doughty  V.  Bowman 
Doupe  V.  Genin 
Dove  V.  Dove 
Dow  V.  Bancks 
Dowd  V.  Gilchrist 
Dowling  V.  Nuebling 
Downard  v.  Groff 
Downing  v.  Palmateer 
Doyle  V.  Dixon 

V.  Gibbs 

V.  Lord 

V.  Union  Pac.  R.  Co 


98 

329,  471 

122,  360 

707 

499 

139 

262,  474a 

82,  367 

463 

2 

389 

516 

632,  638 

329 

612 

412 

495 

682 

598 

572 

666 

382 

20,  170 

106,  107,  359 

22,  579 


Co. 


Drake  v.  Chicago  &c.  R.  Co. 

V.  Wells 

V.  Wilhelm 
Dresser  v.  Transportation  Co. 
Drew  V.  Buck 
Drey  v.  Doyle 
Dreyfus  v.  Hirt 
Driggs  V.  Dwight 
Drohan  v.  Drohan 
Drown  v.  Smith 
Drubaker  v.  Poage 
Drum  V.  Harrison 
Drury  v.  Drury 

V.  Tremont  Imp 
Dryden  v.  Kellogg 
Dubois  V.  Kelley 
Dubuque  v.  Miller 
Ducey  Lumber  Co.  v.  Lane 
Dudley  v.  Folliott 

V.  Sumner 
Duffit  V.  Tuhan 
Duinneen  v.  Rich 
Duke  v.  Harper 
Dumn  V.  Rothermel 
Dumpor's  Case 
Dunbar  v.  Bonesteel 
Duncan  v.  Beard 

v.  Blake 

V.  Potts 
Duncklee  v.  Webber 
Dunham  v.  Townsend 
Dunlap  V.  Bullard 
Dunn  V.  Bagby 

V.  Barton 

V.  Jaffray 

V.  Tillery 


668, 
140, 


645 

37,  38 

555 

436 

65 

264 

670 

369 

91 

636 

5 

34 

92,  95 

463 

717 

713 

210,  212 

12 


5,  180,  474a, 
156,  180, 


361 

58 

690 

39 

682 

197 

470 

65 

14 

68 

179,  197 

5.  363 

29,  30,  224 

446 

373 

331,  455 

86,  320 

34 


xlvi 


TABLE    OF    CASES. 


[References  are  to  Sections.'] 


Dunne  v.  School  Trustees 
Dunning  v.  Finson 

V.  Mauzy 
Dunphy  v.  Goodlander 
Dunshee  v.  Grundy 
Dupas  V.  Wassell 
Durand  v.  Curtis, 
Durr  V.  Chase 
Duryee  v.  Turner 
Dustin  V.  Cowdry 
Dutton  V.  Gerrish  404,  574, 
Dutton  V.  Warschauer 
Dutro  V.  Wilson 
Duval  V.  McLoskey 
Dwight  V.  Cutler 

V.  Mudge 
Dwyer  v.  Carroll 

V.  Newmann 
Dyer  v.  Curtis 

V.  Haley 

V.  Wightman 
Dyett  V.  Pendleton 
Dykers  v.  Townsend 


E 


362. 
354, 


178 

226 

538,  540 

169 

700 

121 

440,  456 

66,  98 

661 

228,  561 

576,  578 

459 

644 

29 

30 

448 

560 

9 

121,  124 

566 

675,  680 

360,  365 

158,  437 


Eames  v.  Prentice 

228, 

559 

Earl,  V.  Hart 

127 

Earle  v.  Fiske 

164 

V.  Hale 

699 

V.  Reed 

96 

East  End  Imp.  Co.  v. 

Sipp 

600, 

611 

East   Norway    Lake 

Church   V. 

Froislie 

20 

East   Tennessee    &c. 

R.    Co.   V. 

Mayor  &c. 

412 

Eastern  R.  Co.  v.  Benedict 

158 

Eastham  v.  Anderson 

9 

V.  Crowder 

431 

Eastman  v.  Amoskeag  Mfg. 

Co. 

604 

V.  Howard 

654 

V.  Perkins 

,  59 

V.  Vetter 

260, 

297 

Easton  v.  Mitchell 

112 

Eaton  V.  Jaques 

458 

V.  Lyon 

339 

V.  Whitaker 

159, 

160, 

679 

Eberlein  v.  Abel 

60 

Ebersol  v.  Trainor 

560 

Eberts  v.  Fisher 

389 

Eberwine  v.  Cook 

257 

Eblin  V.  Miller 

404, 

590 

Ecke  V.  Fetzer 

329, 

377 

Ecker  v.  Chicago  &c. 

R.  Co. 

442 

Eckhart  v.  Irens 

464 

Eddy,  In  re 

671 

Edelmuth  v.  McGarren 

123 

Edgar  v.  Jewell 

51 

V.  Walker 

605 

Edge  V.  Strafford 

24, 

147 

Edgerton  v.  Page 

354,  356,  359,  360,  381 
Edmison  v.  Aslesen  407 

V.  Lowry  105 

Edmonds  v.  Mounsey 

328,  455,  458,  495,  540 
Edmonson  v.  Kite  651,  652,  654 

Edmunds  v.  Electric  Light  &c.  Co.    40 

V.  Missouri  &c.  Co.  652 

Edmundson  v.  Preville  216,  281 

Edwards  v.  demons  661 

V.  Davis  87 

V.  Hale  1,  207,  211,  221,  555 

V.  New  York  &c.  R.  Co. 

576,  577,  579,  608,  609 


447, 


568. 
462' 
421 
122 

37 
650 
669 
504 
222,  558 
131 
392 

87 
389 
349 
229 
465 
348 
548 
666 


V.  Perkins 
V.  Spalding 
V.  Wick  war 

Egan  V.  Gordon 

Eggleston  v.  New  York  &c.  R.  Co. 

Egler  V.  Marsden 

Ehrman  v.  Mayer 

Eichart  v.  Bargas 

Eichengreen  v.  Appel 

Eighmie  v.  Taylor 

Eisenhart  v.  Ordean 

Ela  V.  Card 
V.  French 

Eldred  v.  Leahy 
V.  Sherman 

Eldredge  v.  Bell 

Elevator  Co.  v.  Brown 

Elgutter  V.  Drishaus 

Elkin  V.  Moore 

Elliott  V.  Aiken      354,  540,  588,  600 
V.  Gantt  411,  417 

V.  Lawless  682 

V.  Round    Mountain   Coal   & 

Iron  Co.  555 

V.  Smith  704 

V.  Stone  270 

V.  Stone  City  Bank  288 

Ellis  V.  Boston  &c.  R.  Co.  443 

V.  Bradbury  328,  411,  420 

V.  Brisacher  496 

V.  Lord  Primate  63 

V.  Paige 

148,  185,  192,  240,  254,  570 
V.  Welch  321,  361,  362,  393 

Ellsworth  V.  Hale  175 

Elmer  v.  Sand  Creek  Tp.  661 

Elmira  v.  Dunn  413 

Elms  V.  Randall  476 

Elwell  V.  Shaw  660 

Elwes  V.  Maw  725 

Ely  V.  Ely  392,  398,  588 

Emerick  v.  Tavener 

201,  203,  254,  257,  477,  693,  699 

Emerson  v.  Goodwin  85 

V.  Slater  136 

V.  Spicer  90 


TABLE    OF    CASES. 


xlvii 


iReferences  are  to  Sections.1 


Emerson  v.  Thompson  653 

V.  Weeks  1,  3,  13 

Emery  &  Barnett,  In  re  706 

V.  Boston  Terminal  Co.  156,  343 

V.  Emery  655 

V.  Fugina  568 

V.  Hill                  464,  468,  469,  473 

V.  Owings  66 

Emmes  v.  Feeley    189,  362,  667,  680 

Emmons  v.  Scudder 

1,  177,  207,  227,  555 

Emrich  v.  Union  &c.  Co.  71 

Engel  V.  Fitch  369 

Engels  V.  Mitchell  270 

England  v.  Slade  703 

English  V.  Key                 421,  658,  670 

Engstrom  v.  Merriam  369 

Enyeart  v.  Carpenter  542 

Epps  V.  Cole  650 

Epstein  v.  Greer             262,  272,  288 
Equitable  Trust  Co.  v.  Fisher       125 

Ernst  V.  Crosby  121,  122 

Erskine  v.  Adeane  130,  134 

V.  Plummer  38 

Espen  V.  Hinchliffe  504 

Espy  V.  Fenton  651,  654 

Estabrook  v.  Hughes  486,  718 

V.  Stevenson  377 
Estel  V.  St.  Louis  &c.  R.  Co.         496 

Estep  V.  Estep        373,  404,  588,  600 
Esty  V.  Baker 

186,  228,  254,  293,  437,  438 

Eten  V.  Leyster  659 

V.  Luyster  429,  552 

Etheridge  v.  Osborn  324 

Eubank  v.  May  &c.  Co,  161 

Evans  v.  Conklin  76 

V.  Elliot  94 

V.  Enloe  474a 

V.  Hastings  255,  310 

V.  Kingsberry  88 

V.  McKanna         "  137,  540 

V.  Murphy  596 

V.  Winona  Lumber  Co.  199 

Evers  v.  Shumaker  136 

Evertsen  v.  Sawyer  703 

v.  Sutton  563 

Evill  V.  Conwell  557 

Exchange  Bank  v.  Rice  158 

Eyre  v.  Jordan  579,  585 


P 


561 

310 

6 


Fabri  v.  Bryan 
Fahnestock  v.  Paustenauer 
Failing  v.  Schenck 
Fairchild  v.  Chastelleux 
Faler  v.  McRae 
Falkner  v.  Beers  688 

Fall  V.  Hazelrigg  29,  152 

V.  Moore  212 


171 


Falley  v.  Giles  336 

Falls  V.  Carpenter  35 

Fanning  v.  Stimson  447,  452 

Farley  v.  Craig  430,  658 

V.  McKeegan  197 

V.  Thompson  421,  670 

Farmer  v.  Pickens  682,  697 

V.  Rogers  74 
Farmers'  Bank  v.  Mutual  Asso. 

Soc.  458,  462 
Farmers'  &c.  Bank  v.  Kercheval    662 

Farnam  v.  Hokman  262,  263 

Farnham  v.  Monroe  453 

Farnum  v.  Hefner  466 

Farr  v.  Kenyon  471 
Farrant  v.  Thompson     10,  474a,  635 

Farrar  v.  Heinrich  709 

Farrer  v.  Nightingal  435 

Farrington  v.  Kimball  447,  451 

Farris  v.  Houston  702 

Farrow  v.  Bragg  93 

v.  Edmundson  18,  474a 

Farson  v.  Goodale  270 

Farwell  v.  Easton  383,  471 

Faw  V.  Whittington  35 

Faxon,  Ex  parte  461 

Faxon  v.  Ridge  165 

Fay  V.  Holloran  648 

V.  Muzzey  573 

Faylor  v.  Brice  486,  504 

Feary  v.  Hamilton  592 

Feder  v.  Van  Winkle  712 

Felch  V.  Harriman  .     568 

V.  Taylor  79 

Felker  v.  Richardson  544 

Fellows  V.  Gilhuber  479 

Felthouse  v.  Bindley  157 

Felton  V.  Millard  265 

Fenly  v.  Stewart  660 

Fenn  v.  Smart  494 

Fennell  v.  Guffey  328 

Fenner  v.  Duplock  198 

Fentiman  v.  Smith  36 

Fenton  v.  Montgomery  631 

Fera  v.  Child  616 

Feret  v.  Hill  129 

Ferguson  v.  Cornish  340 

V.  Hoshi  315 

V.  Jackson  338 
Ferris  v.  American  Brewing  Co. 

382.  384 

v.  Hoglan  47,  49 

Fesmire  v.  Brock  86 

Feyreisen  v.  Sanchez  60 
Field  v.  Herrick 

89,  92,  199,  349,  364,  543 

V.  Mills  467 

V.  Schieffelin  90 
Fields  V.  Brown        75,  122,  124,  664 

Fifty  Associates  v.  Grace  448 

V.  Howland  327,  504,  556 


xlviii 


TABLE    OF    CASES. 


[References  are  to  Sections.'\ 


Files  V.  Magoon 
Fillebrown  v.  Hoar 
Finch  V.  Moore 
Findlay  v.  Smith 
Finkelstein  v.  Herson 
Finley  v.  Simpson 
Finney  v.  Cist 
V.  St.  Louis 


627 

365,  505,  669 

207,  270,  297 

632 

261,  303 

80 

337,  554 

201 


First  Cong.  &c.  Soc.  v.  Rochester 

77,  80,  396 

First  Nat.  Bank  v.  Security  Bank  328 

First  Nat.  Bank,  &c.  v.  Adam  67 

Firth  V.  Rowe  727 

Fischer  v.  Johnson  237 

Fish  V.  FoUey  332 

Fish  V.  Thompson  546 

Fisher  v.  Deering  423,  430 

V.  Goebel  410 

V.  Lewis  331 

V.  Milliken  447 

V.  Provin  87 

V.  Prowse  604 

V.  Smith  513 

V.  Thirkell  588,  595,  600 

Fiske  V.  Framingham  Mfg  Co.    5,  22 

V.  Steele  368 

Fitch  V.  Gosser  641 

V.  Windram  30 

V.  Woodruff,  &c.  Works  497 

Fitchburg,  &c.  Co.  v.  Melven 

364,  365,  422,  669 
Fitzgerald  v.  Anderson  714,  716 

V.  Beebe  650 

Fitzherbert  v.  Shaw  718 

Fitts  V.  Whitney  268 

Flagg  V.  Badger  116 

Flanagan  v.  Pearson  695 

Flannery  v.  Rohrmayer  171,  173 

Fleischner  v.  Citizens'  Inv.  Co. 

337,  603,  605,  611 

Fleming  v.  King  675 

Fletcher  v.  Kelly  726 

V.  McFarlane  77 

Flint  V.  Sweeney  206 

Flood  V.  Flood  227 

V.  Yandes  320 

Florsheim  v.  Dullaghan  679 

Floyd  V.  Floyd  6,  251 

Fludier  v.  Lombe  23 

Flureau  v.  Thornhill  140 

Flynn  v.  Hatton  592,  620 

V.  Trask  392 

Fogle  V.  Chaney  257 

Folden  v.  State  59 

Foley  V.  Addenbrooke  713 

V.  Southwestern  Land  Co.    47,  52 

V.  Wyeth  30,  178 

Folkingham  v.  Croft  464 

FolEom  V.  Cook  66,  79 

V.  Moore  185 

V.  Perrin  157 


Folts  V.  Huntley      58,  111,  114,  362 
Fontaine  v.  Schulenburg  &c.  Co.     420 

Foote  V.  Cincinnati  362 

V.  Colvin  48,  51 

V.  Overman  422 

Forbes  v.  Williams  717 

Forbush  v.  Lombard  102,  6/7 

Force  v.  Callahan  334 

Ford  V.  Campfield  74 

V.  Cobb  573 

Fordyce  v.  Cole  700 

Forest  v.  Byrne  431 

Forrest  v.  Durnell  434,  445,  446 

Forsythe  v.  Price  569 

Fort  V.  Brown  63 
Fort  Dearborn  Lodge  v.  Klein 

557,  558 

Fortier  v.  Ballance  476 

Fortune  v.  Watkins  35 

Foss  V.  Marr  572 

V.  Van  Driele  706 

Foster  v.  Atwater  462 

V.  Browning  37 

V.  Fleishaus  540 

V.  Kelsey  557 

V.  Penry  6,  656 

V.  Peyser  574,  576,  583 

Fougera  v.  Cohn  217 

Fowle  V.  Freeman  138 

Fowler  v.  Black  100 

V.  Bott  393,  404,  675 

V.  Fay  463 

V.  Payne  392,  673,  675 

V.  Simpson  700 

Fox  V.  Corey  654 

V.  Harding  497 

V.  McKee  64,  361 

V.  McKinney  55 

V.  Nathans  119,  169,  261 

V.  Swann  467 

Frame  v.  Badger  50 

Francis  v.  Cockrell  609 

V.  Sayles  378 

Frank  v.  Brunnemann  384 

V.  Conradi  593 

V.  Maguire  462 

V.  New  York  &c.  R.  Co.  442 

V.  Thomas  664 

Franklin  v.  Brown  574,  577 

V.  Merida  698 

V.  Palmer  703 

Franklin  Land  &c.  Co.  v.  Card      239 

Fratcher  v.  Smith  151 

Fratt  V.  Hunt  403 

Frauerman  v.  Lippincott  473 

Frazer  v.  Robinson  682 

Frazier  v.  Caruthers  464,  558 

V.  Hanlon  557 

Frederick  v.  Callahan  332,  377 

Fredericksen  v.  Singer  Mfg.  Co.    559 

Free  v.  Stuart  716,  723 


TABLE    OF    CASES. 


xlix 


iReferences  are  to  Sections.'] 


Freeland  v.  Ritz 
Freeman  v.  Heath 

V.  Underwood 

V.  Wilson 
Freer  v.  Stotenbur 
Freidenburg  v.  Jones 
French  v.  Fuller 

V.  Gray 

V.  Mayor,  &c. 
Friedhoff  v.  Smith 
Friedlander  v.  Ryder 

427,  715,  716, 
Friedman  v.  McAdory 

V.  Schwabacher 
Frisbie  v.  Price 
Frischberg  v.  Hurter     599, 
Frost  V.  Earnest 

V.  Kellogg 

V.  Raymond 
Frout  V.  Hardin 
Fry  V.  Day 

V.  Ford 

V.  Jones 

V.  Patridge 
Fuhr  V.  Dean 
Fuller  V.  Ruby 

V.  Sweet  474a, 

V.  Swett 
Fulton  V.  Stuart 
Funk  V.  Kincaid 
Furlong  v.  Leary  188, 

Fusselman  v.  Worthington 


139,  151 
705 
9 
558 
383 
605 

627,  646 
164 
724 

155,  180 

723,  726 

139 
574,  576 

183 
600,  607 

362 
48 

350 

53 

126,  129 

547 
22,  49 

543 

558 
358,  365 
688,  698 
189,  667 
446,  460 
421,  700 
227,  428 
474a 


G 

Gable  v.  Wetherholt  688,  689 

Gaffield  v.  Hapgood  725 

Gage  V.  Bates  503 

V.  Campbell  682 

V.  Smith  489 

Gaines  v.  Green  Pond  &c.  Co.        637 

V.  McAdam  549 

Gaither  v.  Hascall-Richards  &c. 

Co.  574,  580 

V.  Stockbridge  443 

Gale  V.  Nixon  80 

V.  Oil  Run  &c.  Co.  480,  481 

Gallagher  v.  Bennett  702 

V.  Button  576,  588,  614 

V.  Herbert  464 

V.  Shipley  573 

Galloway  v.  Kerby  267 

V.  Ogle  688 

Galveston   City  R.   Co.   v.   Gulf 

Land  Co.  675 

Gandy  v.  Jubber     219,  599,  604,  611 
Ganley  v.  Hall  617 

Gannett  v.  Albree  330,  331,  384,  471 
Gano  V.  Vanderveer  148,  349 

Ganson  v.  Baldwin  296 

Ganter  v.  Atkinson  41,  201 

Jones  L.  &  T. — iv 


Garber  v.  Gianella 

163, 

166 

Garcia  v.  Gunn 

110 

Gardiner  v.  Corson 

324 

Gardner   v.    Board   of 

Commis- 

sioners 

201,  202, 

204 

V.  Hazleton 

132 

V.  Head 

56 

V.  Keteltas 

361,  366, 

367 

V.  Rhodes 

587 

Gardt  v.  Brown 

69 

Garland  v.  Hilborn 

53 

Garner  v.  Byard 

447 

V.  Hannah 

411,  414, 

420,  491, 

503 

V.  Ullman 

152 

Garnhart  v.  Finney 

496, 

497 

Garrett  v.  Clark 

180, 

251 

Garroutte  v.  White 

445 

Garsed  v.  Turner 

140 

Garth  v.  Caldwell 

568 

V.  Cotton 

632 

Gartside  v.  Outley 

25 

Garvin  v.  Jennerson 

29 

Gasles  v.  Johnson 

455 

Gatch  v.  Garretson 

319 

Gates  V.  Caldwell 

350 

V.  Green 

679 

V.  Hendrick 

372 

Gault  V.  Stormont 

174 

Gay,  Ex  parte 

171 

Gay  V.  Davey 

681 

V.  Ihm 

74 

Gaylord  v.  Soragen 

121 

Gazzolo  V.  Chambers 

361,  366, 

367 

Geary  v.  Parker 

507 

Gedge  v.  Shoenberger 

411 

Gee  V.  Moss 

129 

V.  Young 

571 

Geer  v.  Fleming 

640 

Gelston  v.  Sigmund 

563 

Genau  v.  District  of  Columbia 

628, 

629 

Genet  v.  Tallmadge 

90 

Genin  v.  Ingersoll 

699 

George  v.  Fisk 

642 

V.  Patney 

707, 

709 

Gerber  v.  Grabel 

381 

German  State  Bank  v. 

Herron 

237 

Gerzebek  v.  Lord 

334 

Gett  V.  McManus 

373 

726 

Gibbins  v.  Board  &c. 

138 

Gibbons  v.  Dayton 

59 

253 

V.  Dillingham 

640 

641 

Gibbs  V.  Estey 

715 

Gibson  v.  Courthope 

461 

V.  Kirk 

650 

v.  Mullican 

445 

V.  Needham 

146 

V.  Pearsall 

121 

123 

V.  Wells 

625 

Giddings  v.  Felker 

445 

659 

TABLE    OF    CASES. 


[References  are  to  Sections.'^ 


Gifford  V.  King 
Gilbert  v.  Bulkley 

V.  Port 
Gilchrist  v.  Gilchrist 
Giles  V.  Austin 

V.  Comstock 

V.  Hooper 

V.  O'Toole 

V.  Simonds 
Gill  V.  Middleton 

V.  Patton 
Gillespie  v.  Beecher 
Gillett  V.  Mathews 
Gilliam  v.  Moore 


289 
541 
387 
393 
491 
364 
415 
140 
37,  38 
596 
666 
559 
700 
706 


Gilliland  v.  Chicago  &c.  R.  Co.      606 
Gilloon  V.  Reilly  614,  619,  621 

Gilman  v.  Hoare  84 

V.  Milwaukee  201 

V.  Wills  572 

Gilmore  v.  Wilbur  38 

Gilpin  V.  Adams  65 

Gilson  V.  Boston  157 

Gindrat  v.  Western  &c.  477 

Gist  V.  Smith  496 

Givens  v.  Mullinax  702 

Gladwell  v.  Holcomb 

195,  218,  252,  307 
Glascock  V.  Robards  29 

Glass  V.  Coleman  607.  718 

Glazebrook  v.  Woodrow  324 

Gleason  v.  Boehm  614,  617,  619 

Gleaton  v.  Gleaton  702 

Gleim  v.  Rise  702 

Glen  V.  Gibson  688 

Glenn  v.  Thompson  269 

Glickauf  v.  Maurer  596,  597 

Glover  v.  Pipe  625 

Gluck  V.  Elkan  499,  500 

V.  Mayor  &c.  of  Baltimore 

362,  588,  676,  680 
Gocio  V.  Day  373 

Godard  v.  South  Carolina  R.  Co. 

248,  251,  312 
Goddard  v.  Hall  2 

V.  South  Carolina  R.  Co.  192 

Godfrey  v.  Black  465 

V.  Bryan  88 

Godley  v.  Hagerty  613 

Goebel  v.  Hough  358 

Goldberg  v.  Lavinski  152 

Goldman  v.  New  York  Adv.  Co.       40 
Goldsberry  v.  Bishop  33 

Goldsboro  Storage  &  Warehouse 

Co.  V.  Duke  526 

Goldsborough  v.  Gable 

136,  201,  204,  206,  545 
Goldsmith  v.  Wilson  84,  431,  464 
Gomber  v.  Hackett  497 

Gomez  v.  Gomez  111 

Goode  V.  Ruehle  420 

V.  Webb  119 


Goodell  V.  Lassen  647 

Goodenow  v.  Allen  170 

V.  Kilby  682 

Gooding  v.  Shea  640 

Goodman  v.  Hannibal  &c.  R.  Co.   713 

v.  Jones  693 

V.  Malcolm  474a 

Goodrich  v.  Jones  573 

V.  Tenney  664 

Goodright  v.  Cator  504 

V.  Davids  473,  496,  497 

V.  Straphan  87 

Goodsell  V.  Lawson  682 

Goodtitle  v.  Herbert  183 

V.  Way  74,  141,  142 

V.  Woodward  265 

Goodwin  v.  Gilbert  77,  79,  80 

V.  Goodwin  173 

Gordon  v.  George  455 

V.  Haywood  87 

v.  Peltzer  599,  600 

Gorton  v.  Gregory  332 

Goshen  v.  People  561 

Goshorn  v.  Steward  13 

Goss  &c.  Co.  V.  Oviatt  397,  401 

Gossett  v.  Drydale  569 

Gott  v.  Gandy  588,  600 

Gottsberger  v.  Radway  404 

Gould  V.  Kerr  654 

V.  Stanton  653 

V.  Sub-District  No.  3                   431 

V.  Thompson  29,  227,  655 

Gourlay  v.  Duke  of  Somerset        346 

Gore  V.  Stevens  705 

Gowen  v.  Shaw  657 

Grabenhorst  v.  Nicodemus  355 

Grace  v.  Michand  260,  297 

Gradle  v.  Warner  496,  513 

Grady  v.  Iback  655 

V.  Warrell  93,  181,  296 

V.  Wolsner  603 

Graffam  v.  Pierce  130,  131,  133 

Graham  v.  Anderson  268,  270 

V.  Chatoque  Bank  89 

V.  Dempsey  206 

V.  Moore  688 

V.  Wade  412 

Grand  Canal  Co.  v.  Fitzsimons     365 

Grand  Rapids  &c.  Co.  v.  Jarvis      642 

V.  South  Grand  Rapids  &c.  Co.    9 

Granger  v.  Collins  349 

V.  Parker  682 

Grannis  v.  Clark  321 

Grant  v.  Johnson  324 

V.  Ramsey  159,  160 

v.  White  212,  254 

Grauel  v.  Soeller  110 

Gravenor  v.  Woodhouse  198 

Graves  v.  Berdan    102,  474,  570,  677 

v.  Porter  455 

V.  Weld  570 


TABLE    OF    CASES. 


u 


[References  are  to  Sections.^ 


Gray  v.  Blanchard  485 
V.  Chamberlain  661 
V.  Clement  455 
V.  Finch  557 
V.  Kaufman  &c.  Co.  550 
V.  Murray  389 
V.  Rawson  445 
V.  Reynolds  48 
Graysons  v.  Richards  541 
Greason  v.  Keteltas  91,  346 
Great  Northern  R.  Co.  v.  East- 
ern &c.  R.  Co.  9 
Great  Pond  &c.  Co.  v.  Buzzell         66 
Greaves  v.  Ashlin  412 
Greeley  v.  Stilson  38 
Green  v.  Bell  410 
V.  Biddle  653 
V.  Collins  121 
V.  Dietrich  34,  682 
V.  Eales  392,  396,  593 
V.  Hammock  560 
V.  Kroeger  214,  564 
V.  Missouri  &c.  R.  Co.  682 
V.  Morrison  462 
V.  Robinson  60,  694 
Green  Bay  &c.  Co.  v.  Hewitt  70 
Greenaway  v.  Adams  467 
Greene  v.  Cole  626 
V.  Hague  616,  623 
V.  Tallman  369 
Greenleaf  v.  Birth  63 
Greenlee  v.  Greenlee  160 
Greeno  v.  Munson  699 
Greenslade  v.  Tapscott  24 
Greenup  v.  Vernor  654 
Greenwood  v.  Moore  695 
V.  Strother  152 
V.  Tyler  87 
Greer  v.  Wilbur  563 
Gregor  v.  Cady  596 
Gregory  v.  Ford  88 
V.  Lee  96 
V.  Wilson  492 
Greider's  Appeal  538 
Greiner  v.  Cota  341 
Grescot  v.  Green  334,  462 
Greton  v.  Smith  180 
Grey  v.  Cuthbertson    ■  329 
Griffin  v.  Colver  140 
V.  Knisely  139,  141,  267 
V.  Ransdell  716,  726 
Griffith's  Case  625 
Griffith  V.  Brackman  25 
V.  Collins  29,  34 
V.  Hodges  548 
V.  Lewis  603,  607,  611 
V.  Schwenderman  92 
Griffiths  V.  Henderson  322 
Grigsby  v.  Western  &c.  Tel  Co. 

141,  162 

Grimman  v.  Legge  538,  540,  667 


Griswold  v.  Cook  47,  53 

Grizzard  v.  Roberts  688 

Grizzle  v.  Pennington  432 

Groff  V.  Levan  572 

Grogan  v.  Broadway  &c.  Co.  605 

Grommes  v.  St.  Paul  Trust  Co. 

447,  501 
Groome  v.  Ogden  City  Corpora- 
tion 350 
Gross  V.  Hays  185 
Grosvenor  v.  Henry  170,  289 
Groustra  v.  Bourges  187 
Grout  V.  Townsend  85,  477 
Grove  v.  Youell                                357 

V.  Fox  151 

Grubb  V.  Grubb  474a 

Grundin  v.  Carter  328,  455,  456 

Grundy  v.  Martin  86 

Gruner  Lumber  Co.  v.  Nelson       378 
Grunewald  v.  Schaales  299 

Grute  V.  Locroft  88 

Guay  V.  Kehoe  373 

Gudger  v.  Barnes  29 

Guest  V.  Opdyke  48,  51 

V.  Reynolds  381 

Guetzkow  Bros.  Co.  v.  Andrews    371 
Guffey  V.  Clever  128,  580 

Guffy  v.  Hukill  482,  483 

Guild  V.  Leonard  79 

Guinzburg  v.  Claude  442 

Guion  V.  Anderson  88 

Gulf  &c.  R.  Co.  V.  Cusenberry        646 

V.  Settegust  434,  644 

Gulliver  v.  Fowler  589 

Gunn  V.  Scovil  200 

V.  Sinclair  299,  428 

Gunsolus  V.  Lormer  647 

Guthrie  v.  Jones  710 

Gutherie  v.  Stockton  666 

Guthman  v.  Castleberry  587 

Guthmann  v.  Vallery  670 

Gutteridge  v.  Munyard  397 

Guvernator  v.  Kenin  254 

Guy  V.  Barnes  98 

Guyon  v.  Lewis  81 

Gwinnell  v.  Eamer  599 

Gwyn  V.  Wellborn  538 

Gwynn  v.  Jones  555 

H 
Hackney  v.  State  46 

Hadley  v.  Berners  328,  329,  330 

V.  Havens  562 

Haeussler  v,  Holman  &c.  Co. 

459,  555 
Haezlip  v.  Rosenberg  616 

Haflick  v.  Stober  716 

Hagar  v.  Buck  491 

Hager  v.  Wikoff  682 

Haines  v.  Beach  216,  219 

V.  Downey  126 


Hi 


TABLE   OF    CASES. 


[References  are 

to  Sections.'l 

Halbut  V.  Forrest  City 

393 

Hansen  v.  Meyer 

329, 

377 

Haley  v.  Bennett 

29 

V.  Prince 

422 

V.  Boston  Belting  Co. 

81 

V.  Ruckman 

47 

V.  Hickman 

260, 

268 

Hanslip  v.  Padwick 

140 

Hall  V.  Beston 

404 

Hanson  v.  Allen 

682 

V.  Burgess          199,  540, 

543, 

667 

V.  Barnes 

444 

V.  Butler 

697 

V.  Cruse 

576, 

588, 

592 

V.  Center 

387, 

454 

V.  Johnson 

221, 

225 

V.  Chaffee 

45 

V.  Stevenson 

461 

V.  Dewey 

696 

Harbeck  v.  Sylvester 

333 

V.  Durham 

569 

Harcourt  v.  Wyman 

88 

V.  Gould 

501 

Hardin  v.  Forsythe 

699, 

703 

V.  Holmes 

325 

v.  Pulley 

3 

V.  Horton 

140, 

145 

Harding  v.  Crethorn 

203, 

554 

V.  Marston 

462 

V.  Seeley 

337 

V.  Myers 

201, 

251 

Hardison  v.  Mann 

447 

V.  Parker 

378 

Hardware  Co.  v.  McCarty 

465 

V.  Ryder 

128 

Hardy  v.  Williams 

651 

V.  Spaulding 

337, 

338 

Hare  v.  Celey 

48 

V.  Wadsworth 

251, 

259 

V.  Groves 

405 

Hall  &c.  Co.  V.  Wilbur 

683 

Hargrave  v.  King    431, 

464, 

467, 

469 

Hallberg  v.  Brosseau 

665 

Hargrove  v.  Miller 

63, 

110 

Haller  v.  Squire 

547 

Harkey  v.  Cain 

725 

Hallett  V.  Wylie 

Harlan  v.  Harlan 

635 

141,  143,  392, 

393, 

675 

v.  Lehigh  &c.  Co. 

574 

Hallifax  v.  Chambers 

631 

Harloe  v.  Lambie 

135 

Halligan  v.  Wade 

669 

Harlow  v.  Lake  Superior  Iron  Co.  67 

Ham  V.  Hill 

420 

Harmony  Co.  v.  Ranch 

356 

Hamblett  v.  Bennett 

36,  43 

Harms  v.  McCormick 

349, 

369, 

660 

Hamberton  v.  Stead 

146 

Harnett  v.  Maitland 

627 

Hamill  v.  Jalonick 

682 

Harpel  v.  Fall 

579 

Hamilton  v.  Ames 

98 

Harper  v.  Charlesworth 

647 

V.  Graham 

63 

Harrington  v.  Hall 

473 

V.  Pittock 

697 

V.  Watson 

102, 

675, 

677 

V.  Thrall 

323 

Harris  v.  Booker 

655 

V.  Wright 

349 

V.  Carson 

569 

Hammers  v.  Haurick 

702 

V.  Corlies 

395 

V.  Johnson 

463 

V.  Coulborn 

329 

Hammock  v.  Creekmore 

49 

V.  Dub 

101 

Hammon  v.  Douglas      180 

192 

242 

V.  Frank 

431 

460 

V.  Sexton 

413 

V.  Frink 

32 

Hammond  v.  Barton 

12 

113 

V.  Goslin 

391 

397 

635 

V.  Blue 

703 

V.  Halverson 

261 

315 

V.  Dean 

5 

V.  Heackman 

447 

448 

675 

V.  Thompson 

186 

189 

V.  Howes 

340 

V.  Winchester 

41 

V.  Knowles 

92 

Hammons  v.  McClure 

702 

V.  McDonald 

123 

Hanaw  v.  Bailey 

487 

V.  Ohio  Oil  Co. 

41 

Hanchet  v.  Whitney 

251 

260 

V.  Taylor 

87 

Hanchett  v.  Whitney 

268 

Harrisburg  School  Dist 

.  V.  Long 

697 

Hancock  v.  Boggus 

50 

Harrison  v.  Blackburn 

15 

458 

V.  Yunker 

82 

V.  Colton 

61 

Hand  v.  Osgood 

152 

,  154 

v.  Middleton 

174 

185 

314 

V.  Suravitz 

414 

v.  Parmer 

142 

Handrahan  v.  O'Regan 

129 

V.  Ricks 

49,  50,  53 

Hanham  v.  Sherman 

540 

v.  Steele 

658 

Hanks  v.  Price 

1 

Harry  v.  Harry 

555 

Hanley  v.  Banks 

349 

,  612 

Hart  V.  Evans 

644 

Hanlon  v.  Thompson 

14 

V.  Gray 

268 

Hanrahan  v.  O'Reilly 

725 

V.  Hart 

111 

637 

Hansen  v.  Dennison 

52,  53 

V.  Pratt 

553 

TABLE    OF    CASES. 


liii 


[References  are  to  iSections.'i 


Hart  V.  Windsor       574,  576,  578,  588 
Harter  v.  Cristoph  70 
Hartford  &c.   Min.  Co.  v.  Cam- 
bria Min.  Co.  109 
V.  Mayor  &c.  404 
Hartshorn  v.  Earley  95 
Hartung  v.  Witte  331 
Hartzog  v.  Hubbard  697 
Harty  v.  Harris  201,  210 
Harvey  v.  Briggs  221 
V.  Brydges  558 
V.  Gunzberg  201,  202 
V.  Harvey  629 
V.  McGrew  445 
Harwood  v.  Hopkins  468 
Hastings  v.  Crunckleton       632,  636 
V.  Livermore  644 
V.  Lovejoy  135,  136 
v.  Wilson  461 
Hasty  V.  Wheeler  632 
Hatch  V.  Bullock  689 
V.  Hart  52,  54,  55 
V.  Hatch  541 
V.  Stamper  588,  681 
Hatchell  v.  Kimbrough  50,  53 
Hately  v.  Myers  201,  204 
Hatfield  v.  Fullerton  669 
Hauser  v.  Romer  180,  192 
Hauxhurst  v.  Lobree  221,  226,  254 
Haverstick  v.  Sipe  106,  381 
Hawes  v.  Favor  486 
V.  Shaw  705 
Hawkins  v.  Coulthurst  389 
V.  James  14 
V.  Sherman  334 
Haworth  v.  Taylor  164 
Hawralty  v.  Warren  387 
Hay  V.  Connelly  19 
V.  Cumberland  98 
v.  Palmer  667 
Hayden  v.  Bradley  409 
V.  Lucas  139 
Hayes  v.  Bickerstaff  361 
V.  Ferguson  354,  363,  390 
V.  Lawyer  426 
Hayner  v.  Smith     349,  354,  355,  365 
Haynes  v.  Aldrich  206,  209 
V.  Union  Im.  Co.  503 
Hays  V.  Goree  5 
Hayward  v.  Ramge  354,  358,  549 
V.  Collins  562 
Haywood  v.  Miller  19,  20,  563 
V.  O'Brien  430 
v.  Ramge  382 
Hazeltine  v.  Colburn 

244,  272,  275,  302 

Hazen  v.  Hoyt  388 

Hazlehurst  v.  Kendrick  329 

Hazlett  V.  Powell  359,  681 

Head  v.  Head  257,  474a 

Heal  V.  Niagara  Oil  Co.  87 


Healy  v.  Trant  120,  489 

Hearn  v.  Gray  11,  180 

Hearne  v.  Lewis  427,  670 

Heath  v.  Williams  682,  688 
Hearilon  v.  Farmers'  Bank    570,  572 

Hebron  Church  v.  Adams  566 

Hecht  v.  Dettman  422 

V.  Ferris  424 

v.  Heerwagen  667 

Heckart  v.  McKee  703 

Hedderich  v.  Smith  590,  718 

Heflin  v.  Burns  427 

Hefling  v.  Van  Zandt  423 

Hegeman  v.  McArthur  669 
Heilbron  v.  King's  River  &c.  Co.   642 

V.  Last  Chance  &c.  Co.  644 
Heims  Brew.  Co.  v.  Flannery      501 

Heineck  v.  Grosse  121 

Heintze  v.  Bentley  588,  600 

Heiple  v.  Reinhart  487 

Helburn  v.  Mofford  675,  677 

Helena  v.  Turner  683 

Hellams  v.  Patton  153 

Helwig  V.  Jordan  603 

Hemingway  v.  Preston  125 

V.  Scales  87 

Hemphill  v.  Flynn  201,  206 

Henderson  v.  Connelly  378 

V.  Hay  464 

v.  Virden  Coal  Co.  77,  111 

Hendrick  v.  Cannon  255 

Hendrickson  v.  Beeson  421,  522 

v.  Hendrickson  557 

Hendrix  v.  Dickson   ,  328,  411 

Henkel  v.  Murr  621 

Henly  v.  Neal  353 

Hennessey  v.  Hoag  654 

Henry  v.  Chrisinger  417 

V.  Tupper  491 

Henson  v.  Beckwith  599 

Heme  v.  Benebow  625 

Herrell  v.  Sizeland  251,  257 

Herrin  v.  Libbey  126,  128 

Herrington  v.  Wood  65 

Herrmann  v.  Curiel  661 

Hersey  v.  Chapin  640,  641 

Herskell  v.  Bushnell  51 

Herter  v.  Mullen  208,  209 

Hertzberg  v.  Beisenbach  367,  367a 

Hess  V.  Newcomer  574,  629 

V.  Weingartner  404 

Hessel  v.  Johnson  659 

Hesseltine  v.  Seavey  540,  543 

Hetfield  v.  Central  R.  Co.  37 

Hetzel  V.  Barber  703 

Hentiz  v.  Pipher  699 

Hewlins  v.  Shippam  36,  44 

Hexter  v.  Knox  410 

Heyer  v.  Beatty  682 

Heywood  v.  Fulmer  41 
Hibbard  v.  Hurlburt       98,  101,  110 


Ur 


TABLE    OF    CASES. 


[References  are  to  Sections.} 


Hicks  V.  Downing  446 

V.  Martin  445,  446 

V.  Parham  675 

Higgins  V.  California  &c.  Co.  84,  668 
V.  Halligan  267 

V.  Turner  428,  689,  690,  702,  704 


Co 


Hilbourn  v.  Fogg 
Hildretli  v.  Conant 
Hill  V.  Barclay 

V.  Bishop 

V.  Boutell 

V.  Coal  Valley  Min 

V.  Cutting 

V.  De  Rocliement 

V.  Dobie 

V.  Gill 

V.  Hill 

v.  Hooper 

V.  Jamieson 

V.  Reno 

V.  Rudd 

V.  Saunders 

V.  Spear 

V.  Taylor 

V.  Wand 

V.  Wilson 

V.  Woodman 
Hill  Trustees 
Hillhouse  v.  Jennings 
Hilliard  v.  Gas  Coal  Co. 

V.  New  York  &c.  Co. 

Hilsenbeck  v.  Guhring 
Hilsendegen  v.  Scheicli 
Hinckley  v.  Guyon 
Hines  v.  Wilcox 
Hingham  v.  Sprague 
Hinsdale  v.  Humphrey 
Hintze  v.  Thomas 
Hirsch  v.  Oliver 
Hisey  v.  Troutman 
Hislop  V.  Moldenhauer 
Hitchcock  V.  Bacon 
Hitner  v.  Ege 
Hoag  V.  Carpenter 
Hoagland  v.  Crum 

V.  New  York  &c.  R.  Co. 
349,  352, 
Hobart  v.  Murray 
Hobbs  V.  Batory  76, 

Hockenbury  v.  Snyder 
Hodge  V.  Giese 
Hodgeden  v.  Hubbard 
Hodgen  v.  Guttery 
Hodges  V.  Fries 

V.  Howard 

V.  Shields 
Hodgkin  v.  McVeigh 
Hodgkins  V.  Price   272,  502 

V.  Robson 
Hodson  V.  Sharpe 


647,  685,  700 

187 

491 

324 

12 

1 

38 

573 

461 

378 

29,  38 

382 

382 

428,  668 

465 

349 

121 

637 

473,  496 

136,  676 

«5,  74,  404 

91 

152 


Hoerdt  v.  Hahne 

543 

Hoffar  V.  Dement 

29, 

655 

Hoffman  v.  Clark 

33, 

563 

V.  McCollum 

169, 

210 

V.  Stigers 

87 

Hogg  V.  Reynolds 

328, 

460 

Hogsett  V.  Ellis               2,  13 

,  30, 

696 

Holbrook  v.  Chamberlin 

402 

V.  Tirrell 

541 

V.  Young 

363 

Holden  v.  Purefoy 

35 

Holden  &c.  Asso.  v.  Wann 

709 

Holder  v.  Taylor 

319 

Holdsworth  v.  Tucker 

139 

Holford  V.  Dunnett 

628 

V.  Hatch 

445, 

467 

Holladay  v.  Chicago  Arc  Light 

&c.  Co.  36,  37,  40 

Holland  v.  Cole  466 

Holley  V.  Metcalf  202 

V.  Young  144,  340 

Holliday  v.  Aehle  432 

V.  Marshall  379,  439 

V.  Noland  447 

Hollingsworth  v.  Stennett  555 

Hollis  V.  Burns  216 

V.  Edwards  147 

V.  Pool        170,  192,  221,  254,  256 


381 

681 

614, 

617 

270 

5 

582 

59 

80, 

318 

334, 

456 

543 

568 

216 

680 

628, 

629 

542 

116, 

670 

352a, 

365 

41 

,  201, 

202 

702 

163 

558 

34, 

689 

369, 

370 

160 

689 

699 

,  517 

562 

365 

363 

Holloway  v.  Galliac 

698 

Holly  V.  Brown 

483 

V.  Holly 

422 

Holman  v.  Bonner 

695 

V.  Delin 

465 

Holmead  v.  Maddox 

123, 

124 

Holmes  v.  Blogg 

92 

V.  Seely 

90 

V.  Shepard 

346 

Holt  V.  Martin 

81, 

703 

Holton  V.  Noble 

129 

Holtzapffel  v.  Baker 

405 

Holwin  V.  De  Lin 

659 

Holzderber  v.  Forrestal 

154 

Home  &c.  Ins.  Co.  v.  Sherman 

360 

Home  L.  Ins.  Co.  v.  Pierce 

496 

Honore  v.  Murray 

666 

Honzik  v.  Delaglise 

726 

Hood  V.  Mathis 

655 

Hook  V.  Garfield  Coal  Co. 

637 

Hooker  v.  Banner 

397 

Hooper  v.  Broderick    ' 

384 

V.  Clark 

331 

V.  Cummings 

109, 

446 

V.  Farnsworth 

104 

Hoopes  V.  Meyer 

361 

Hooton  V.  Holt 

6, 

254 

Hoots  V.  Graham 

558 

Hoover  &c.  Co.  v.  Pacific  Oil  Co. 

157 

Hopkins  v.  Gilman 

346 

V.  Holland 

12 

V.  McClelland 

530 

V.  RatlifE                      18, 

373, 

590 

TABLE   OF    CASES, 


Iv 


IBeferences  are  to  Sections.] 


Hopping  V.  Burnam 

71 

Hudson  V.  Wheeler 

696 

Hopwood  V.  Barefoot 

415 

Hudson   Canal   Co.   v. 

Pennsyl- 

Morgan  v.  Krumwiede 

136 

vania  Coal  Co. 

375 

Horner  v.  Leeds 

59 

Huff  V.  Markham    324, 

325, 

512, 

565 

Horsefall  v.  Mather 

628 

V.  Nickerson 

318 

Horsey  v.  Horsey 

221 

V.  Walker 

89 

Horton  v.  Miller 

673 

V.  Watkins 

49 

Horwitz  V.  Davis 

461 

Huffman  v.  McDaniel 

60 

Hosford  V.  Ballard 

525 

V.  Pollard 

28 

Hosher  v.  Hestermann 

103 

V.  Starks 

152, 

153 

Hoskins  v.  Rhodes 

52 

Hug  V.  Van  Burkleo 

346 

Hoslie  V.  Yokel 

155, 

568 

Huggall  V.  McKean 

592, 

593 

Hough  V.  Birge 

3, 

655 

Hughes,  Appeal  of 

89 

V.  Brown                      486, 

488, 

539 

V.  Chatham 

20 

Houghton  V.  Moore 

103 

V.  Hood 

367 

House  V.  Burr 

154, 

337 

V.  Mason 

34 

V.  Jackson 

98 

V.  Robotham 

428, 

429 

V.  Metcalf 

607 

V.  "Vanstone 

404, 

629 

Houston  V.  Farris 

563, 

682 

V.  Watt 

689 

V.  Laffee 

37 

V.  Windpfennig 

341, 

343 

Houts  V.  Showalter 

572 

V.  Young 

412, 

413, 

690 

Hovenden  v.  Annesley 

474a 

Hukill  V.  Guffey 

492 

Hovey  v.  Walker 

672 

Hulett  V.  Inlow 

87 

How  V.  Broom 

365 

V.  Nugent 

77 

V.  Norton 

650 

V.  Stockwell 

445 

Howard  v.  Britton 

435 

Huling  V.  Roll 

553 

V.  Carpenter 

1^ 

[,  83 

Hull  V.  Stogdell 

656 

V.  Ellis 

431 

V.  Vaughan 

33, 

354 

V.  Fessenden 

713, 

716 

Humble  v.  Langston 

449, 

451 

V.  Hill 

34 

Hume  Bros.  v.  Taylor 

496 

V.  Merriam 

428 

Humiston  &c.  Co.  v.  Wheeler 

V.  Shaw 

29,  30 

102, 

103, 

358, 

549 

Howcott  V.  Collins 

666 

Humphreston's  Case 

95 

Howe  V.  Gregory 

12 

Humphreville  v.  Billinger 

356 

Howell  V.  Behler 

13, 

345 

Humphrey  v.  Wait 

576 

V.  Foster 

53 

Humphries  v.  Humphries 

254 

V.  Howell 

182, 

190 

V.  Smith 

234 

V.  Schenck 

569, 

570 

Hundley  v.  Moore 

465 

Howeth  V.  Anderson 

393 

Hunnewell  v.  Bangs 

388, 

486 

Howland  v.  CoflSn 

650 

Hunstock  V.  Palmer 

122 

V.  Leach 

324 

Hunt  V.  Bailey 

202, 

267 

V.  White                      423, 

431, 

513 

V.  Brown 

368 

Hoy  V.  Gronable 

140 

V.  Coe 

159, 

440 

V.  Holt 

392 

V.  Comstock 

6 

Hoyle  V.  Bush 

99 

V.  Cope 

354 

Hoyleman  v.  Kanawha  &c. 

R.  Co. 

V.  Danforth 

329, 

332, 

377 

629, 

631 

V.  D'Orval 

140 

Hoyt  V.  Wilkinson 

451 

V.  Dowman 

16 

H.  R.  E.  &c.  Assn.  v.  Cochran 

216 

V.  Gardner 

447, 

453 

Hubbard  v.  Ensign 

462 

V.  Hazelton 

74 

V.  Quisenberry 

28 

V.  Matthews 

49 

V.  Russell 

604 

V.  Morton 

197 

V.  Shaw 

635 

V.  Thompson 

430. 

658 

V.  Town 

381 

Hunter  v.  Frost 

196, 

252, 

297 

Hubble  V.  Cole                 368 

631, 

633 

V.  Giddings 

158, 

437 

Hubner  v.  Feige 

487 

V.  Jones 

570 

Huddell,  In  re 

411, 

455 

V.  Karcher 

262 

Hudgins  v.  Wood 

50 

V.  Reiley 

364, 

674 

Hudson  V.  Jones 

95 

V.  Silvers 

337 

V.  Porter 

569 

Huntington  v.  Knox 

158, 

660 

V.  Stewart 

433 

V.  Parkhurst 

194, 

197 

Ivi 


TABLE    OF    CASES. 


[References  are  to  Sectiona.l 


Hurd  V.  Darling  53 

V.  Whitsett  215,  219 

Hurley  v.  Lamoreau  651 

Huron  v.  Kerr  160 

Hurtt  V.  Woodland  545 

Huston  V.  Field  662 

Hutcheson  v.  Hodnett  91 

V.  Jones  538 

Hutchings  v.  Commercial  Bank    547 

Hutcliins  V.  Dresser  89 

V.  Hodges  665 

V.  Weldin  120 

Hutchinson  v.  Bramhall  163 

V.  Cummings  589,  593 

V.  Potter  310 

V.  Ulrich  464 

Hutton  V.  Powers  657 

V.  Warren  203,  631 

Huyser  v.  Chase  180,  296 

Hyatt  V.  Third  Baptist  Church       75 

V.  Wood  33,  558,  647 

Hyde  v.  Skinner  343 

Hyman  v.  Jockey  Club  &c.  Co. 

354,  365 
Hynes  v.  Ecker  465 


I 


Ibbs  V.  Richardson  207,  227,  554 

Iddings  V.  Nagle  68,  569 

Iggulden  V.  May  67,  343,  462 

Illingworth  v.  Mittenberger  502 

Illinois  &c.  R.  Co.  v.  Baltimore 

&c.  R.  Co  565 

Inches  v.  Dickinson  448 

Indian  &c.  Co.  v.  Sikes  382 

Indianapolis  v.  Kingsbury  87 

Indianapolis   &c.    Union    Co.    v. 

Cleveland  &c.  R.  Co.  446,  469,  473 
Indianapolis  &c.  R.  Co.  v.  First 

Nat.  Bank  195,  197,  514,  661 

Indianapolis    Nat.    Gas    Co.    v. 


Spaugh 
Ingalls  V.  Hobbs 
Ingraham  v.  Baldwin 
Ingwersen  v.  Rankin 
Inhabitants  &c.  v.  Jones 
Inman  v.  Morris 

V.  Stamp 
Insurance   &c.    Co.   v. 


99 
578 
697 
604 
713 
654 
24,  147 
National 


Bank  &c.  338,  339,  340 

Insurance  Co.  of  Penn.  v.  O'Con- 

nell  5 

International  &c.  R.  Co.  v.  Rags- 
dale  646 
International  Trust  Co.  v.  Schu- 
mann                                               356 
V.  Shumann                                  358 
Intfen  v.  Foster                                 555 
Ireland  v.  Nichols                           496 
Ireton  v.  Ireton  694 


Irvine  v.  Scott  238 

V.  Wood  603 
Irving  V.  Thomas                    126,  661 

Irwin  V.  Covode  632 

V.  Cox  251 

Isaacs  V.  Holland  88 
Island  Coal  Co.  v.  Combs 

483,  488,  496,  503 

Ittner  v.  Robinson  415 

Ivay  V.  Hedges  620 

Ives  V.  Ives  558 

V,  Van  Bpps  368 

V.  Williams  202 


Jack  V.  Carneal  19 

Jackson  v.  Aldrich  33,  186 

v.  Allen  498 

v.  Anderson  541 
V.  Andrew                    632,  636,  639 

V.  Ayers  696,  697 

V.  Babcock  475 

V.  Barringer  98 

V.  Bradt  197 
V.  Brownson                 98,  625,  636 

V.  Bryan  175 

V.  Bull  84 

V.  Cairns  88 

V.  Collins  504 

V.  Corliss  466 

V.  Crysler  496 

V.  Davis  703 
V.  Delacroix                141,  143,  146 

V.  Eddy  360 
V.  Farmer                    338,  558,  559 

v.  Groat  454 

V.  Harper  479,  688 
V.  Harrison                 420,  467,  503 

V.  Harsen  225,  479 

V.  Hughes  251,  431 

V.  Kingsley  29 
V.  Kisselbrack            142,  146,  481 

V.  Livingston  254 

V.  McConnell  88 

v.  McLeod  203 

V.  Mancius  477,  479 

v.  Mowry  2 

V.  Murray  84 

V.  Odell  580 

V.  Page  541 

V.  Patterson  136 

V.  Perrine  99 

V.  Pesked  626,  641 

V.  Robinson  422 

V.  Rogers  176 

V.  Rowland  703 

V.  Salmon  203,  251 

V.  Schoonmaker  60 

V.  Silvernail  466,  467 

V.  Spear  688,  702 


TABLE   OF    CASES. 


Ivii 


iBeferences  are  to  Sections.} 


688 

653 

474a 

633 

438 

142 

474a,  478 

11 

474a 

98 

197 

Philadelphia 

37 


Jackson  v.  Stiles 

V.  Stone 

V.  Thomas 

V.  Tibbets 

V.  Titus 

V.  Van   Hoesen 

V.  Vincent 

V.  Vosburgh 

V.  Wheeler 

V.  Wilkinson 

V.  Wilsey 
Jackson  &c.  Co.  v. 

&c.  R.  Co. 
Jacksonville  &c.  R.  Co.  v.  Hooper  389 
Jacques  v.  Short  456 

Jaffe  V.  Harteau  576,  579,  585 

Jaffray  v.  Greenbaum  135 

Jamaica  v.  Hart  533,  683 

James  v.  Belding  682 

V.  Cochrane  319 

V.  Dean  184 

V.  Kibler  17,  337 

V.  Landon  688 

V.  Patterson 

V.  Russell 
Jamesin  v.  Thomen 
Janes  v.  Jenkins 
Janney  v.  Goehringer 
January  v.  Stephenson 
Jaques  v.  Gould 
Jarboe  v.  Mulry 
J.  B.  Alfree  Mfg.  Co.  v.  Henry 
Jefcoat  V.  Gunter 
Jeffers  v.  Easton 
Jefferson  v.  Jameson  &c.  Co. 

V.  Jefferson 
Jeffryes  v.  Evans 
Jellett  V.  Rhode 
Jemison  v.  McDaniel 
Jenkins  v.  Eldredge 

V.  Green 

V.  Jenkins 

V.  Jenkins  Univ. 
Jenks  V.  Edwards 
Jenner  v.  Morgan 
Jennings  v.  Bond 

v.  McComb 

V.  Sparkman 

V.  Van   Schaick 


30 

682 

414 

381 

379 

8 

111,  393 

100 

1 

369 

435 

597 

626 

134 

152 

675 

142,  143,  146 

63 

268,  503,  514 

70 

367 

667 

358,  363 

152 

165 

618 


Jersey  City  &c.  Co.  v.  United  Gas 


Imp.  Co. 
Jessen  v.  Sweigert 
Jewell  V.  Harding 

V.  Woodman 
Jewett  V.  Berry 
Jochen  v.  Tibbells 
John  Morris  Co.  v. 

Johns  V.  McDaniel 

V.  Whitley 
Johnson  v.  Albertson 


415 

601,  607 

655 

568 

503 

348,  694 

Southworth 

628,  679 

257,  298 

569 


482, 


47 
197, 


217 


Johnson  v.  Branch 

v.  Carter 

V.  Chely 

v.  Church  Wardens 

V.  Collins  587, 

V.  Dixon 

V.  Donaldson 

222,  223,  225, 

V.  Doss 

V.  Douglass 

V.  Foreman 

v.  Gurley 

v.  Hannahan 

V.  Hauser 

v.  Hoffman 

V.  Johnson 

V.  Kellogg 

V.  King 

V.  Knapp 

V.  Lewis 

V.  May 

V.  Muzzy 

V.  Oppenheim 

V.  Phcenix  &c.  Ins.  Co 

V.  Reading 

V.  Shank 

V.  Sherman 

V.  Stewart 

V.  Tacoma  &c.  Co. 

V.  Wilkinson 

V.  Wilson 
Johnston  v.  Bates 

V.  Glancy 

v.  Haines 

V.  Hargrove 

v.  Jones 

v.  Smith 
Johnstone  v.  Huddlestone 
Jolly  V.  Single 
Jonas  V.  Noel 
Jones  V.  Adams 

V.  Barnes 

V.  Brewer 

V.  Carter 

V.  Dore 

V.  Durrer 

V.  Freidenberg 

V.  Hill 

V.  Hoard 

V.  Jones 

V.  Kroll 

V.  Leeman 

V,  Marsh 

V.  Millsaps 

V.  Neale 

V.  O'Farrel 

V.  Parker 

V.  Reed 

V.  Reynolds 

V.  Richardson 

V.  Rigby 


491, 


31 


328, 


159,  160 
220 

126 

334 

594.  596 

598,  628 

230,  311 

422 

496 

210,  212 

487,  495 

558 

31,  563 

,  54,  645 

247,  428 

98 

322 

462 

604 

650 

80,  670 

681 

71,  141 

440 

289 

456,  459 

295 

579 

43 

128 

456 

160 

72 

503,  534 

87 

422 

251 

22,  497 

369 

656 

447 

89 

495,  501 

699 

53,  500 

605 

572 

129,  373 

,  32,  464 

336 

640 

272,  273 

612 

541 

378 

447,  454 

503,  523 

146 

494 

421 


Iviii 


TABLE   OF   CASES. 


[References  are  to  Sections.l 


Jones  V.  Roberts  138 

V.  Rushmore  539 

V.  Shay  179 

V.  Shears  207,  208 

V.  Shufflin  726 

V.  Smith  658 

V.  Springfield  &c.  Co.  675 

V.  Temple                    178,  183,  314 

V.  Thomas  572 

V.  Willis  216,  253 

Jordan  v.  Davis  83 

V.  Katz  3,  693 

V.  Lindsay  56 

V.  Pollock  541 

V.  Staples  63 

V.  Woodward  642 

Joslin  V.  Ervein  444 

Josslyn  V.  McCabe  716 

Jouitt  V.  Lewis  451 

Jourdain  v.  Wilson  331 

Jourgensen  v.  Fraitel  142 

Journeay  v.  Brackley  455,  461 

Joy  V.  McKay  186,  280 

Joyce  V.  Martin                603,  604,  608 

Judd  V.  Arnold  157 

V.  Fairs  197 

Judik  V.  Crane  542 

Junction  R.  Co.  v.  Harris  87 

Juneman  v.  Franklin  688 

Jungerman  v.  Bovee  718 

Justice  V.  Lowe  490,  491 

K 

Kabley  v.  Worcester  Gas  L.  Co. 

5,  77,  79,  141,  143,  144 

Kabus  V.  Frost  592 

Kahn  v.  Love  404,  601 

Kalis  V.  Shattuck  606,  607 

Kamerick  v.  Castleman  47,  52,  54 

Kamphouse  v.  Gaffner  37 

Kampinsky  v.  Halls  594 

Kane  v.  Mink  363 
Kankakee  &c.  R.  Co.  v.  Horan       197 

Kansas  Inv.  Co.  v.  Carter  357 

Kash  V.  Huncheon  375 

Kaufman  v.  Clark  404 

V.  Cook  176,  229 

Kean  v.  Kolkschneider  367 

Keates  v.  Cadogan          579,  580,  612 
Keating  v.  Springer 

354,  355,  356,  381 

Keaton  v.  Thomasson  '             3 

Keats  V.  Hugo  106,  381 

Keay  v.  Goodwin     227,  228,  422,  668 

Keech  v.  Hall  254 

Keefe  v.  Furlong  713 

Keegan  v.  Kinnaire        132,  201,  205 

Keeler  v.  Davis  497 

v.  Eastman  636 

v.  Green  383 


Keeley   Brewing   Co.   v.   Mason 

438,  439 
Keeling  v.  Kuhn  42 

Kehr  v.  Hall  683 

Keiper  v.  Klein  381 

Kellam  v.  Janson  228,  559 

Kellenberger  v.  Foresman 

588,  628,  629,  679 

Keller  v.  Klopfer  87 

Kelley  v.  Weston  53 

Kellogg  v.  Groves  289,  555 

V.  Kellogg  29 

V.  King  63,  642 

V.  Robinson  331 

Kellum  V.  Berkshire  L.  Ins.  Co. 


195, 

421, 

427 

Kelly  V.  Bowerman 

430 

V.  Chicago  &c.  R.  Co. 

132, 

375 

V.  Clancy 

563 

V.  Davis 

370, 

371 

V.  Dutch  Church 

361, 

369 

V.  Waite 

148, 

187, 

192 

Kelsey  v.  Ward 

673 

Kelso  V.  Crilly 

205 

Kemp  V.  Bird 

382 

V.  Derrett 

261 

Kempner  v.  Heidenheimer 

140 

Kenada  v.  Gardner 

29 

Kendall  v.  Garland  81, 

430, 

658, 

661 

V.  Hill 

391 

V.  Moore 

555, 

662 

Kendall  &c.  Co.  v.  Bain 

73 

Kennedy  v.  Lee 

138 

Kenney  v.  Doe 

703 

V.  Parks 

438 

V.  Sweeney 

221, 

225 

V.  Wentworth 

116 

Kenny  v.  Barns 

616 

V.  Collier 

369, 

371 

Kent  V.  Kent 

154 

V.  Waite 

104 

Kentucky   &c.   Co.   v. 

Common- 

wealth 

486 

Kentucky  &c.  R.  Co.  v. 

Higgins 

645 

Kepley  v.  Scully 

699, 

705 

Kerley  v.  Mayer 

383 

Kern  v.  Myle 

579, 

584 

Kernochen  v.  Wilkens 

180, 

199 

Kerr  v.  Clark 

197 

v.  Day 

387, 

454 

v.  Kingsbury 

720 

V.  Merchants'  Exch 

Co. 

102, 

474, 

677 

v.  Simmons 

554 

Kerrains  v.  People 

20 

Kershaw  v.  Kershaw 

77 

Kerwhacker  v.  Cleveland  &c.  R. 

Co. 

307 

Ketsy's  Case 

92 

Kew  v.  Trainor 

326,  431, 

464, 

472, 

487 

TABLE    OF    CASES. 


Hx 


[References  are  to  Sections.] 


Keyes  v.  Dearborn  60 

Keys  V.  Forrest  703 

Keyse  v.  Powell  110 

Kldd  V.  Dennison            632,  635,  636 

Kidder  v.  Hunt  159 

Kiernan  v.  Germain  540,  673 

V.  Linnehan  30 

V.  Sanders  682 

V.  Terry              126,  682,  688,  702 

Kiersted   v.   Orange  &c.   R.  Co. 

81,  652,  658,  660 


Kiester  v.  Miller 

538 

Kieth  V.  Paulk 

651 

Kile  V.  Giebner 

725 

Kilpatrick  v.  Harper 

55 

Kimball  v.  Cross 

5, 

340 

V.  Doggett 

672, 

673 

V.  Grand  Lodge  &c. 

361 

V.  Hilton 

640 

V.  Pike 

422 

V.  Rowland 

473, 

517 

V.  Sumner 

626 

Kimpton  v.  Walker 

321, 

447 

King  V.  Anderson 

670 

V.  Bird 

363 

V.  Connolly 

280 

V.  Crocheron 

541 

V.  Davies 

501 

V.  Edwards 

319 

V.  Foscue 

570 

V.  Housatonic  R.  Co. 

421, 

422 

V.  Lawson 

190 

V.  Miller 

636 

V.  Reynolds 

367, 

367a 

V.  Stock 

19 

V.  Whittle 

571 

V.  Wilson 

343 

V.  Woodruff 

199, 

200 

Kingdon  v.  Nottle 

332 

Kingsbury  v.  Powers 

416 

V.  Westfall 

676 

Kingsley  v.  Siebrecht 

151,  156,  158, 

437, 

440 

Kingston  v.  Preston 

324 

Kinlyside  v.  Thornton 

626 

Kinnersley  v.  Orpe 

467 

Kinney  v.  Harrett 

89 

V.  Watts 

351 

Kinsey  v.  Minnick 

549 

Kinsley  v.  Ames               223, 

230, 

293 

Kinsman  v.  Greene 

85 

Kirby  v.  Boylston  &c.  Asso 

601, 

602, 

618 

Kirchgassner  v.  Rodick 

1,  40 

Kirk  V.  Mattier 

41 

Kirkpatrick  v.  Peshine 

384 

Kirtland  v.  Pounsett 

29 

Kirton  v.  Eliott 

92 

Kising  V.  Stannard 

228 

Kistler  v.  Wilson            354, 

356, 

359 

404,  591, 


41, 


Kitchen  v.   Cape  Girardeau  &c. 

R.  Co. 
Kitchen  v.  Smith  412, 

Kittle  V.  St.  John  71,  164, 

Kleespies  v.  McKenzie  201, 

Klie  V.  Von  BroocR        632,  633, 
Kline  v.  Jacobs 

V.  Johnston 

V.  McLain 
Kling  V.  Dress 
Klingle  v.  Ritter 
Knapp  V.  Anderson 
Knecken  v.  Voltz 
Knefel  v.  Daly 
Knerr  v.  Bradley 
Knight  V.  Cox 

V.  Indiana  Coal  Co. 

V.  Old 

V.  Orchard 
Knipe  v.  Palmer 
Knoeppel    v.    Kings    County    F. 

Ins.  Co. 
Knorr  v.  Raymond 
Knotsford  v.  Gardiner 
Knowles  v.  Hull  1, 

V.  Maynard 

V.  Murphy 

V.  Steele 
Knox  V.  Marshall 
Koeber  v.  Somers 
Koehler  v.  Scheider 
Koeleg  V.  Phelps 
Koenig  v.  Miller  Bros.  &c.  Co. 
Kohne  v.  White 
Kolasky  v.  Michels 
Kollock  V.  Scribner 
Koplitz  V.  Gustavus 
Kornegay  v.  Collier 
Kortjohn  v.  Seimers 
Kraft  V.  Welch 
Kramer  v.  Cook     154,  337,  340, 
Krapp  V.  Crawford 
Krause  v.  Kraus 
Kreiss  v.  Seligman 
Krider  v.  Ramsay 


563, 
140, 


337,  338, 
148, 


380, 


Krueger  v.  Ferrant 
Krug  V.  Davis 
Kugel  V.  Painter 
Kuhn  V.  Kuhn 

V.  Smith 
Kunzie  v.  Wixom 
Kurrus  v.  Seibert 
Kutter  V.  Smith 
Kyle  V.  Proctor 

V.  Stocks 
Kyte  V.  Keller 


Lacey  v.  Newcomb 
Lachman  v.  Deisch 


429,  431. 
446, 
576, 


177, 


375,  376, 


289, 


127 
413 
538 
215 
638 
373 
682 
613 
391 
564 
673 
319 
682 

34 
697 
174 
659 
486 

75 

108 
426 
171 

348 
671 
702 
369 
54 
351 
261 
486 
543 
410 
345 
343 
180 
422 
127 
384 
405 
319 
435 
121 
445, 
659 
612 
2 
114 
262 
255 
257 
561 
716 
554 
476 
568 


9 
641 


TABLE    OF    CASES. 


IReferences  are  to  Sections.1 


Ladd  V.  Brown 

153 

Lawrence  v.  Dole 

323 

V.  Hawkes 

373 

V.  French 

669 

V.  Riggle 

11, 

257,  474a  | 

V.  Hasbrouck 

75, 

217 

V.  Robinson 

55 

V.  Lawrence 

541 

V.  Shattock 

635 

Lawrenson  v.  Butler 

387 

V.  Smith 

548 

Lawry  v.  Lawry 

626, 

641 

Ladner  v.  Balsley 

129 

Lawton  v.  Salmon 

710 

Lady  Anne  Fry's  Case 

327 

Lay  V.  Bennett 

360 

La  Farge  v.  Halsey 

364 

Layman  v.  Throp 

255 

Laffan  v.  Naglee 

454 

Lea  V.  Hernandez 

112, 

170 

Laguerenne  v.  Dougherty 

202 

Leach  v.  Goode 

412 

Laird  v.  Boyle 

343 

Leadbetter  v.  Roth 

360 

V.  Mantonya 

447, 

448 

Leader  v.  Homewood 

716 

Lake   v.   Campbell     71 

,  74, 

157, 

171 

Leadlay  v.  McRoberts 

157 

Lake  Erie  &  W.  R.  Co 

.   V. 

Ken- 

League  v.  Snyder 

695 

nedy 

37 

,  42 

Leahy  v.  Lubman 

261 

Lakin  v.  Roberts 

2 

Learoyd  v.  Godfrey 

599 

Lamar  v.  McNamee 

540, 

543 

Leary  v.  Meier 

288, 

514 

Lamb  v.  Brewster 

413 

Leavitt  v.  Fletcher        392, 

396, 

405, 

Lambert  v.  Borden 

201 

408 

,  593, 

600 

Lamberton  v.  Stouffer 

656 

V.  Leavitt 

197 

Lambeth  v.  Warner 

636 

Ledoux  V.  Jones 

549 

Lametti  v.  Anderson 

332, 

377 

Ledsinger  v.  Burke 

550 

Lamme  v.  Dodson 

696 

Leduke  v.  Barnett 

468 

Lamparter  v.  Wallbaum 

596 

Lee  V.  Lee 

15,  62 

Lampman  v.  Milks 

381 

V.  McLaughlin 

599, 

602 

Lamson  v.  Clarkson 

703 

V.  Payne                     445, 

446, 

682 

Lancashire  v.  Mason 

422, 

703 

V.  Risdon 

710 

716 

Land  v.  Fitzgerald 

579 

Leebrick  v.  Stable 

164 

Landon  v.  Townshend 

190 

Leeds  v.  Cheetham 

405, 

676 

Lane  v.  King 

572 

L'Hussier  v.  Zallee 

367, 

563 

V.  Nelson 

175 

Legh  V.  Heald 

63 

V.  Ruhl 

270 

Le  Gierse  v.  Green 

447, 

455 

V.  State 

56 

Lehman  v.  Nolting 

157 

Lang  V.  Young 

474 

Lehow  V.  Simonton 

462 

Langan  v.  Schlief 

268 

Leiby  v.  Wilson 

378 

Langford  v.  Selmes 

446 

Leick  V.  Tritz 

369 

Langley  v.  Ross 

487 

Leiferman  v.  Osten 

102 

Lankford  v.  Green 

650, 

651 

Leigh  V.  Shaw 

63 

Lanpher  v.  Glenn 

102 

675, 

681 

Leighton  v.  Ricker 

414 

Lansing  v.  Pine 

428 

Leishman  v.  White 

364 

365 

V.  Van  Alstyne 

460 

Leitch  V.  Boyington        28, 

426, 

668 

Lantman  v.  Miller 

555 

Leiter  v.  Pike 

79 

Lanyon  v.  Woodward 

53 

Leland  v.  Sprague 

48,  53 

Lapham  v.  Norton 

29 

655 

Leman  v.  Best 

718 

La  Point  v.  Scott 

631 

Lemar  v.  Miles 

725 

Larkin  v.  Avery      15, 

197, 

199, 

232, 

Lembeck  &c.  Co.  v.  Kelly 

163 

251 

,  282 

561 

Lemington  v.  Stevens 

71 

713 

Larned  v.  Clarke 

30 

Lenderking  v.  Rosenthal 

138 

V.  Hudson 

175 

Leonard  v.  Armstrong 

576 

Larue  v.  Farren  Hotel  Co. 

600 

V.  Burgess 

430 

Lask  V.  Ames 

186 

V.  Kingman 

2 

Lassell  v.  Reed 

573 

V.  Storer 

599, 

602 

Lathrop  v.   Standard 

Oil 

Co. 

2 

V.  White 

107 

Latta  V.  Weiss 

448 

449 

Leopold  V.  Judson 

363 

Lattimore  v.  Harsen 

135 

136 

Leppla  V.  Mackey 

330 

Laughran  v.  Smith 

75 

,  199 

,  217 

Lerch  v.  Sioux  City  Times  Co. 

132 

Laurence  v.  Fox 

462 

Lerned  v.  Johns 

158 

437 

Lausman  v.  Drahos 

V 

689 

Lesley  v.  Randolph 

261 

310 

Law  V.  Haley 

108 

Leslie  v.  Pounds 

596 

Lawrence  v.  Davey 

136 

V.  Smith 

373 

TABLE   OF    CASES. 


Ixi 


[References  are  to  Sections.'] 


Levering  v.  Langley 

540 

Levett  V.  Bickford 

495, 

496 

Levey  v.  Dyess 

393 

Levitzky  v.  Canning 

354,  357, 

370 

Lewes  v.  Ridge 

462 

Lewis  v.  Campau 

125 

V.  Chisliolm 

323,  324, 

410 

V.  Clark 

129 

V.  EflSnger 

375 

V.  Fish 

539 

V.  Havens 

13 

V.  Hughes 

504, 

679 

v.  Jones 

573 

V.  Lyman 

53, 

573 

V.  McNatt 

566 

V.  Ocean  Nav.  &c.  Co.  718 

V.  Payn                          62,  129,  365 

V.  Perry  202 

V.  Ringo  257 

V.  St.  Louis  521 

V.  Sheldon  431 

Leydecker  v.  Brintnall  618 

Libbey  v.  Staples  78,  318 

V.  Tolford                    404,  588,  590 


Liebe  v.  Nicolai 
Lieber  v.  Blanc 


661 
593 


Lieberthal  v.  Montgomery    675,  677 


Liebeschutz  v.  Moore 
Lieferman  v.  Osten 
Lienow  v.  Ritchie 
Liford's  Case 
Lightbody  v.  Truelsen 
Lightfoot  V.  West 
Linahan  v.  Barr 
Lincoln  Trust  Co.  v. 


428 

356 

627,  641 

653 

22 

402 

713,  727 

Nathan     392, 

405 

Linden  v.  Hepburn  490 

v.  Hooper  654 

Lindenbower  v.  Bentley  640 

Lindon  v.  Hooper  651 

Lindley  v.  Dakin  421,  426,  427 

V.  Miller  381 

Lindsey  v.  Leighton       84,  496,  597, 

614 
Lindsley  v.  Schnaider  Brew.  Co. 
Line  v.  Stephenson 
Linn  v.  Ross 
Linton  v.  Hart 
Lipsett  V.  Perdue 
Lister  v.  Lane 
Lithgow  V.  Moody 
Little  V.  Dyer 


V.  Libby 
V.  McAdaras 
V.  Palister 
V.  Pearson 
Little  Rock  &c.  Co.  v. 

Little  Valeria  &c.   Co. 

bert 
Littleton  v.  Clayton 


462 

350 

675 

668 

95 

397 

255 

128 

2 

596 

190,  640 

29 

Shall       490, 

491 

V.   Lam- 

715 
688 


364, 
464, 


29,  225,  227, 

490, 

112,  310, 


15, 
693, 


180, 


Littleton  v.  Wynn 
Livermore  v.  Eddy 
Livingston  v.   L'Engle 

V.  Reynolds 

V.  Stickles 

V.  Sulzer 

V.  Tanner 

V.  Tompkins 
Lloyd  V.  Cozens 

V.  Rosbee 
Loach  V.  Farnum 
Lobdell  V.  Keene 

V.  Mason 
Lober  v.  Bangs 
Lock  V.  Furze 
Locke  V.  Coleman 

V.  Frasher 

V.  Homer 
Lockett  V.   Fort  Worth   &c.   R. 

Co. 
Lockwood  V.  Lockwood 

V.  Lunsford 

V.  Thunder   Bay  &c 
Lodge  V.  White 
Loeser  v.  Liebmann 
Lofland  v.  Emory 
Loft  V.  Dennis 
Loftus'  Case 
Logan  V.  Anderson 

V.  Herron 
Loker  v.  Damon 
Lombard  v.  Kinzie 
London  v.  Warfield 
London  &c.  Bank  v.  Curtis    218, 
London    &c.    R.    Co.    v.    South 

Eastern  R.  Co. 
Long  V.  Bolen  Coal  Co. 

V.  Bonner  650, 

V.  Fitzsimmons  404,  628, 

V.  Gieriet 

V.  Seavers 

V.  Stafford 
Longfellow  v. 


Co. 


447, 
234, 


251, 


Longfellow 


340 
11. 
682, 


Longshore  v.  Jack 
Longworth  v.  Wolfinger 
Loomis  V.  Wilbur 
Looney  v.  McLean  576,  614, 

Lord  V.  Brookfield 

V.  Walker 
Loring  v.  Melendy 

V.  Taylor 
Lorman  v.  Benson 
Lorring  v.  Willis 
Losee  v.  Buchanan 
Lothrop  V.  Thayer  625, 

Loudan  v.  Warfield  635, 

Louer  v.  Hummel 
Loughran    v.    Ross         716,  718, 
Lounsbery  v.   Snyder  180, 

Love  V.  Edmonston  32,  182, 


1,  2 
548 
673 
635 
467 
725 
229 
491 
446 
564 
135 
559 
563 
324 
369 
163 
702 
463 

642 
195 

41 
2 
452 
724 
661 
676 

88 
543 
310 
410 
109 
625 
249 

9 
269 
651 
629 
673 
656 
,  342 
555, 
688 
129 
689 
635 
620 
674 
114 
171 
11 
9 
563 
624 
627 
638 
700 
721 
354 
682 


Ixii 


TABLE    OF    CASES. 


[References  are  to  Sections. '\ 


Love  V.  Howard 

415 

McCarger  v.  Rood 

159, 

160 

V.  Law 

555, 

705 

McCarthy  v.  Fagin         580, 

581, 

614 

Lovering  v.  Levering 

321, 

349 

V.  Trumacher 

720 

Lovett  V.  United  States 

398 

V.  Yale 

280 

Low  V.  Elwell 

'228, 

558, 

559 

V.  York  Co.  Sav.  Bank 

604, 

616 

V.  Settle 

63, 

110 

McCartney  v.  Alderson 

563 

Lowe  V.  Brown 

346 

V.  Auer 

476, 

705 

V.  Miller 

54 

McCarty  v.  Ely 

128 

V.  Ross 

17 

V.  Humphrey 

414 

Lowell  V.  Spaulding 

595, 

600 

McClain  v.  Abshire 

112, 

113 

V.  Strahan 

108, 

468 

Maclary  v.  Turner 

547 

Lowenberg  v.  Bernd 

713 

Maclean  v.  Dunn 

157 

Lowman  v.  Sheets 

131, 

152, 

153 

McClelan  v.  Gaston 

561 

Lowrey  v.  Reef 

670 

McCleland  v.  Rush 

342 

Lowry  v.   Tew 

32 

V.  Wiggins 

289 

L.  St.  L.  &  T.  R.  Co.  V. 

Barrett 

645 

McClenahan  v.  Gwynn 

435 

Lucas  V.  Brooks 

693, 

696 

McClintock  v.  Joyner 

431 

V.  Comerford 

458 

McCloskey  v.  Doherty 

640, 

641 

V.  Coulter 

373 

V.  Miller 

654 

V.  McCann 

418 

McCloud  V.  Jaggers 

530 

Lucier  v.  Marsales 

227 

McCloury  v.  Croghan 

140 

Lucy  V.  Wilkins 

548 

McClung  V.  Echols 

254, 

316 

Lufkin  V.  Preston 

430 

V.  Ross 

657 

V.  Zane 

604, 

605, 

607 

McClure  v.  McClure 

255 

Lundin   v.    Schoeffel 

491, 

492 

McCombs  V.  Wallace 

29,  30,  33 

Lunn  V.  Gage 

324, 

673 

McConnell  v.  Bowdry 

697 

Lunsford  v.  LaMotte  Lead  Co. 

41 

V.  East  Point  Land  Co. 

433 

V.  Turner 

706 

V.  Lemley 

579 

Lush  V.  Druse 

98,  99, 

666 

McCorkle  v.  Yarrell 

563 

Luttrell  V.  Caruthers 

4 

McCormick  v.  Cheevers 

131 

V.  Knox  County 

412 

V.  Herndon 

29 

Lyde  v.  Russell 

716, 

718 

v.  Milburn  &  Stoddard  Co. 

358 

Lydiard  v.  Chute 

71 

V.  Stephany 

383 

Lyebrook  v.  Hall 

221 

V.  Stowell 

471 

Lyles  v.  Murphy 

689 

McCoull  V.  Herzberg      128, 

576, 

674 

Lynch  v.  Baldwin 

354, 

355, 

381 

McCoy  V.  Bateman 

705 

v.  Ortleib 

574, 

575, 

576 

V.  Oldham 

83, 

410 

V.  Sauer 

126 

McCracken  v.  Hall 

711, 

716 

Lynde  v.  Hough 

467, 

471 

McCraw  v.  Old  North  State  Ins. 

Lynn's  Appeal 

636, 

637 

Co. 

496 

Lyon  V.  Cunningham 

30 

McCrea  v.  Marsh 

44 

V.  King 

382 

McCreery  v.  Day 

135 

V.  McMaster 

476 

McCroy  v.  Toney 

152 

V.  Reed 

539, 

544 

McCue  V.  Whitwell 

378 

V.  Washburn 

697 

M'Cullough  V.  Irvine 

636 

Lyons  v.  Osborn 

340 

McCurdy  v.  Canning 
McDaniel  v.  Callan 

87 
638 

M 

McDevitt  V.  Sullivan 
McDill  V.  McDill 

126 
320 

Mabry  v.  Harp        431, 

432, 

465, 

567 

McDonald  v.  Hanlon 

563 

McAdoo  V.  Callum 

343, 

347 

V.  May 

659 

McAlester  v.  Landers 

354, 

673 

V.  Tree 

123 

McAlpin  V.  Powell 

588, 

589 

McDonough  v.  Oilman 

603, 

604 

McAnany  v.  Tickell 

413 

V.  Starbird 

219, 

718 

McBee  v.  Sampson 

431 

McDougald  v.  Graham 

35 

McBurney  v.  Mclntyre 

107, 

433 

McDowell  V.  Hendrix 

455 

M'Callough  V.  Irvine 

632 

V.  Hyman               11,  23, 

349, 

622 

McCann  v.  Rathbone 

190 

V.  Simpson 

251 

MeCanna  v.  Johnston 

203 

V.  Sutlive 

705 

McCardell  v.  Miller 

362 

McDuff  V.  Beauchamp 

87 

V.  Williams        164, 

410, 

421, 

426 

McFadden  v.  McCann 

347 

TABLE   OF    CASES. 


Ixiii 


IReferences  are  to  Sections.2 


McFadin  v.  Rippey 
McFarlan  v.  "Watson 
McFarland  v.  Heim 
McFarlane  v.  Pierson 

V.  Williams 
McGee  v.  Gibson 


354,  669 

445 

457 

410 

77,  137a,  661 

21 


McGinley  v.  Alliance  Trust  Co.     614 

McGinn  v.  French  594 

McGinnis  v.  Genss  315 

McGlauflin  v.  Holman  70,  71 

McGlynn  v.  Brock  553 

V.  Moore  119,  372,  497,  500 

McGrath  v.  Boston  5,  146 

McGregor  v.  Brown  635 

V.  Rawle  168,  336 

McGuffie  V.  Carter  703 

McGuire  v.  Wright  436 

Machen  v.  Hooper  629 

McHenry  v.  Marr  392 

Mcintosh  V.  Hodges  197 

V.  Rector  &c.  374 

Mclntyre  v.  Kingston  65 

Mack  V.  Patchin     349,  365,  368,  369 

Mackay  v.  Bloodgood  320 

McKee  v.  Angelrodt  458 

MacKellar  v.  Sigler  548 

McKenzie  v.  Cheetham  585,  617 

V.  Harrison  135 

V.  Hatton  641 

V.  Lexington  84,  552 

McKeon  v.  Cutter  574,  576,  589,  614 


McKesson  v.  Jones 
Mackey  v.  Mackey 

V.  Potter 
McKie  V.  Anderson 
McKildoe  v.  Darracott  471, 
Mackin  v.  Haven 
McKinley  v.  Chicago  &c.  R 
McKinney  v.  Peck 

V.  Reader 
Mackintosh  v.  Trotter 
McKissack  v.  Bullington 
McKissick  v.  Ashby 
McLaughlin  v.  Dunn 

V.  Kennedy 
McLean  v.  Fiske  &c 


705 

138 

152 

694 

497,  500 

688,  701 

Co.      15 

218 

441.  538 


Co. 


710,  721 

6 

255,  688 

652 

51 

588,  589, 

593 

V.  Nicol  133,  575 

V.  Rockey  171 

V.  Spratt  260,  262,  268.  427 

McLellan  v.  Whitney  52,  53 

McLendon  v.  West  Point  &c.  R. 

Co.  2 

McLennan  v.  Grant  1,  99,  437 

McLeran  v.  Benton       190,  226,  227, 

280 
McMahan  v.  Jacoway  428,  429 

McMann  v.  Autenreith  681 

McManus  v.  Fair  Shoe  &c.  Co. 

411,  417 
McMath  V.  Levy  728 


637,  639, 
102, 
458, 


503,  504. 

491, 

95 
383,  384, 


675, 


McMichael  v.  Craig  477, 

McMillan  v.  Love 

V.  Robbins 

V.  Solomon 
McMurphy  v.  Minot 
McMurtry  v.  Adams 
McNairy  v.  Hicks  361, 

McNamee  v.  Relf 
McNeal  v.  Rider  47 

McNeeley  v.  Hart 
McNeil  V.  Ames  444, 

V.  Kendall 

V.  Tenth  Nat.  Bank 
McNichol  V.  Eaton 
McPherson   v.    Atlantic   &c.    R. 

Co. 
McQuade  v.  Emmons 
McQuesney  v.  Hiester 
McQuesten  v.  Morgan 
McSloy  V.  Ryan 
Mactier  v.  Osborn 
McVicker  v.  Dennison 
Maddon  v.  White 
Maddox  v.  White 
Madigan  v.  McCarthy 
Madox  V.  Humphries 
Magaw  V.  Lambert 
Magee  v.  Fisher 
Maggort  V.  Hansbarger 
Magruder  v.  Peter 
Magwire  v.  Tyler 
Mahana  v.  Blunt 
Maher  v.  Hanley  Brewing  Co. 

V.  James  Hanley  &c.  Co. 
Mahoney  v.  Farley 
Maidstone  v.  Stevens 
Main  v.  Davis 

V.  Feathers 
Maine  v.  Cumston 
Makin  v.  Watkinson      409,  592, 
Malley  v.  Thalheimer 
Mallory  v.  Stodder 
Maltman  v.  Williamson 
Manchester  &c.  Co.  v.  Carr    409, 
Mann  v.  Brewer 

V.  Fuller 

V.  Nunn 
Manning  v.  Brown  221,228, 

V.  Franklin  159, 

Mansel  v.  Norton 
Manwaring  v.  Jenison 
Marburg  v.  Cole 
Marchand  v.  York 
Mark  v.  North 
Markland  v.  Crump 
Marks  v.  Ryan 
Marie  v.  Flake 
Marley  v.  RodgerS' 

V.  Wheelwright 
Marlow  v.  Wiggins 
Marney  v.  Byrd 


479 
25 
690 
677 
503 
707 
640 
705 
,  54 
46 
496 
446 
473 
636 

413 

20 
666 
523 
272 
492 
374 
.  97 
638 
715 
358 
676 

76 
393 

89 
471 
160 
266 
174 
6 
533 
669 
449 
318 
593 
384 
541 
666 
578 
652 
596 
133 
324 
160 
332 
715 

87 
357 
171 
658 
718 
430 
421 
693 

75 
421 


Ixiv 


TABLE   OF    CASES. 


IReferences  are  to  Sections.'] 


Marquart  v.  LaFarge  219 

Marr  v.  Ray  159,  217,  651 

Marsh  v.  Brace  447,  452 

V.  Bristol  486 

V.  Butterworth  363 

V.  McNider  109 

Marshall  v.  Cohen  616 

Marsters  v.  Cling  186 

Martens  v.  O'Connor  86 

Martin  v.  Black  461 

V.  Blanchett  5,  161 

V.  Davis  142 

V.  Hamersky  202 

V.  Knapp  2,  237 

V.  Martin  430,  670 

V.  Ohio  River  R.  Co.  535 

V.  O'Conner  446 

V.  Rector  525 

V.  Richards  584 

V.  Splivalo  280 

V.  Stearns  548,  550 

Martindale  v.  Price  438 

Martineau  v.  Steele  670 

Martinez  v.  Thompson  397 

Marwedel  v.  Cook  619 

Marys  v.  Anderson  119 

Mason  v.  Breslin  442 

V.  Delancy  29,  30,  563 

V.  Fenn  725 

V.  Hawes  561 

V.  Howes  592 

V.  Kempf  255 

V.  Moyers  569 

V.  Smith  328,  411,  447,  451 

V.  Stiles  626 

V.  Wierengo  206,  208 

Massachusetts  Gen.  Hospital  v. 

Somerville  ,     20 

Massan  v.  French  122 

Massie  v.  State  Nat.  Bank  140 

Mast  V.  Pearee  575 

Masury  v.  Southworth  328,  335,  389 

Mathewson  v.  Thompson  311 

Mathinet  v.  Giddings  717 

Matthews'  Appeal  704 

Matthews  v.  Matthews  19,  563 

V.  Sawell  543 

V.  Whltaker  434 

Mattis  V.  Robinson  688,  689 

Mattler  v.   Strangmeier         588,  589 

Mattox  V.   Helm  701 

V.  Hightshue  29 

Maughlin  v.  Perry  387 

Maule  V.  Ashmead  349,  368 

V.  Weaver  318 

Maverick  v.  Jones  705 

V.  Lewis  59 

Maxwell  v.  Jones  642 

V.  Todd  483,  488 

May  v.  Calder  89 

V.  Gillis  396 


May  v.  Rice 
Mayberry  v.  Johnson 
Mayer  v.  Lawrence 

V.  Morehead 

V.  Waters 
Mayhew  v.  Hardesty 
Maynard  v.  Maynard 
Mayo  V.  Fletcher 
Mayor  v.  Morehead 
Mayor  &c.,  In  re 


274 
57,  74 
153 
676 
121 
164,  456,  458 
456 
223 
675 
415 


Mayor  &c.  v.  Bridge  Co.  694 

v.  Brooklyn  &c.  Ins.  Co.  726 

V.  Cashman  415 

V.  Huntington  661 

V.  Ketcham  667 


V.  Mabie 
V.  Pattison 
V.  Rice 
V.  Sonneborn 
V.  Whitt 
Mays  V.  Dwight 


351,  354,  365,  368 
431 
343 
683 
706 
702 


Maywood  v.  Logan 
Mead  v.  Pollock 
Meader  v.  Stone 
Meadow  v.  Hopkins 
Meany  v.  Abbott 
Meath  v.  Watson 
Medary  v.  Gathers 


674 
20 
558 
30 
597 
473 
404 


Medinah  Temple  Co.  v.  Currey 

457,  461,  464,  466,  473 
Meeker  v.  Spalsbury  354,  539 

Meeks  v.  Bowerman  361,  576 

Meetze  v.  Charlotte  &c.  R.  Co.        45 
Meier  v.  Thiemann  190,  226 

Melchoir  v.  McCarty  61 

Melhop  V.  Meinhart  112 

Mellen  v.  Morrill  585,  599 

V.  Whipple  462 

Melms  V.  Pabst  Brew.  Co.    625,  633, 

636 
Mendel  v.  Fink  616 

V.  Hall  209,  221,  238 

Menger  v.  Ward  434,  454 

Meni  v.  Rathbone  420 

Meno  V.  Hoeffel  229,  230 

Menough's  Appeal  661 

Merchants'  Bank  &c.  v.  Clavin      699 
Merchants'  Ins.  Co.  v.  Mazange    389, 

444,  454 
Mercil  v.  Broulette  559 

Meridan  Land  &c.  Co.  v.  Ball       696 
Meroney  v.  Wright  502 

Merraman  v.  Caldwell  474a 

Merriam  v.  Ridpath  719 

V.  Willis  559 

Merrifield  v.  Cobleigh  471 

Merrill  v.  Bullock         1,  3,  177,  229 

v.  Frame  321,  349 

V.  Willis  539,  549 

Merritt  v.  Fisher  52 

V.  Judd  713,  716,  718,  722 


TABLE   OF    CASES. 


Ixv 


[References  are  to  Sections.l 


Merry  v.  Hallet  172 

Merryman  v.  Bourne  706 

Mershon  v.  Williams  340,  349 

Merwin  v.  Camp  116 

Messenger  v.  Armstrong  255 

Messerly  v.  Mercer  23 

Messersmith.  v.  Messersmith 

485,  491 
Messinger  v.  Union  Warehouse 

Co.  54 

Messley  v.  Ladd  695 

Metropolitan  Land  Co.  v.  Man- 
ning 485,  490,  491 
Meyer  v.  Harris  604 
V.  Rothschild  464 
V.  Smith  549 
Meyers  v.  Myrrell                    392,  397 
Meyers  Bros.  v.  Gaertner  456 
Michael  v.  Curtis  178 
Michigan  &c.  R.  v.  Bullard  702 
Michigan  M.  Ins.  Co.  v.  Bowes    496 
Mickie  v.  Lawrence  10 
Middlebrook  v.  Corwin                  573 
Middlebrooks  v.  Mayne                   604 
Middlefield  v.  Church  Mills  &c. 


Co. 


Middlekauff  v.  Smith 
Middleton  v.  Dodswell 
Miland  v.  Meiswinkel 
Miles  V.  Blkin 

V.  Lauraine 

V.  Miles 

V.  Stanke 
Milford  V.  Holbrook 
Milhouse  v.  Patrick 
Miliken  v.  Faulk 
Millan  v.  Kephart 
Miller  v.  Ammon 

V.  Benton 

V.  Buchanan 

V.  Campbell 

V.  Clement 

V.  Dennis 

V.  Finch 

V.  Fitzgerald  &c.  Co. 

V.  Fulton 

V.  Green 

V.  Hancock 

V.  Havens 

V.  Lampson 

V.  Lang 

V.  Levi 

V.  McCardell 

V.  Maguire 

V.  Mariner's  Church 

V.  Mead 

V.  Michel 

V.  Morris 

V.  Prescott 

V.  Ridgely 

V.  Shackleford 
Jones  L.  &  T. — v 


328 
397,  410 
91 
679 
29,  655 
385 
635 
394 
601,  613,  618 
699 


163 

66 

120 

681 

654 

98 

572 

540 

344 

642 

640 

421 

617 

482,  486 

232 

688,  697 

115,  170,  482 
408 
121,  356 
594 
378 
365 
393 

331,  386,  473 
555 
251 


Miller  v.  Shields 

635, 

637 

V.  Smythe 

91, 

587 

V    Sparks 

503 

V.  Stewart 

453 

Miller  Lumber  Co.  v.  Wilson 

378 

Millikan  v.  Davenport 

703 

Milliken  v.  Thorndike 

126 

Milling  v.  Becker 

549 

Mills  V.  Auriol 

447 

v.  Baehr 

680 

V.  Goff 

261 

V.  Hamilton 

709 

V.  Heaton 

709 

V.  Peed 

705 

Milne  v.  Davidson 

121 

Milnes  v.  Gery 

346 

Milsap  V.  Stone              682, 

689, 

705 

Milton  V.  Haden 

701 

Mims  V.  Chandler 

26 

Miner  v.  Stevens 

558 

V.  Tagert 

389 

V.  Williams 

93 

v.  Tobin 

428, 

437 

Minneapolis   Coop.   Co.   v. 

Wil- 

liamson 

665 

Minot  v.  Joy 

679 

Minshall  v.  Lloyd 

710, 

721 

v.  Cakes 

329 

Mirick  v.  Bashford 

334 

v.  Hoppin 

355 

Missouri  &c.  Co.  v.  Richardson 

447 

Mitchell  V.  Blossom 

553 

v.  Commonwealth 

6 

V.  McNeal 

714 

V.  McNeil 

331 

V.  Nelson 

392 

V.  Pendleton 

657 

V.  Stevens 

110 

V.  Zimmerman 

128 

Mixon  V.  Coffield 

422, 

658 

Mizner  v.  Munroe 

188 

Moak  V.  Johnson 

369 

Moffat  V.  Henderson 

412 

414 

V.  Smith              404,  430 

459, 

588 

Monday  v.  O'Neil 

572 

Mondschein  v.  State 

51 

Monk  V.  Noyes 

401 

Montague  v.  Gay 

668 

669 

V.  Jamison 

431 

432 

Montanye  v.  Wallahan 

76 

363 

Montecon  v.  Faures 

465 

Montgomery  v.  Board  &c. 

340 

V.  Craig 

476 

V.  Tate 

88 

V.  Willis 

201 

212 

Moody  V.  King 

644 

V.  Seaman 

270 

271 

Mooers  v.  Wait 

635 

636 

Moore  v.  Beasley 

686 

v.  Boyd 
v.  Calvert 

254 
1 

Ixvi 


TABLE    OF    CASES. 


IReferences  are  to  Sections.2 


Moore  v.  Davis 
V.  Faison 
V.  Foley 
V.  Gardiner 
V.  Goedel 


554 
7 
343 
410 
624 


V.  Guardian  Trust  Co.  467 

V.  Harvey  1,  654,  655 

V.  Luce  479 

V.  Mason  228 

V.  Miller  59 

V.  Morrow  220,  230 

V.  Parker  581 

V.  Smith  31,  303,  712 

V.  Spruill  50 

V.  Townshend  625,  627,  630 

V.  Valentine  727 

V.  Weber  404 

V.  Wood  712 

Moran  v.  Moran  516 

Morehead  v.  Watkyns   180,  251,  259 

Morey,  Estate  of  393 

Morey  v.  Hoyt  715,  716 

V.  Pierce  580 

Morgan  v.  Bissell  142 

V.  Griffith  130,  134 

V.  McCollister  543 

V.  Milman  346 

V.  Morgan  7 

V.  Powers  271 

V.  Slaughter  464 

V.  Smith  453,  501,  549 

V.  United   States  36,  42 

V.  Varick  653 

Moring  v.  Ward  38 

Moroney  v.   Hellings  672 

Morphett  v.  Jones  160 

Morrill  v.  De  la  Granja  559 

V.  Mackman  9,  39,  40 

Morris  v.  De  Wolf  495 

V.  Kettle  66,  67,  364,  365 

V.  Shakespeare  126 

V.  Sliter  323 

V.  Summerl  389 

V.  Tillson  357 

Morris  Canal  &c.  Co.  v.  Mitchell     20 

V.  Ryerson  603 

Morrison  v.  Bassett  682 

V.  Chadwick  364 

V.  Herrick  160 

V.  Marquardt  381 

V.  Peay  159,  160 

V.  Sohn  722 

Morrow  v.  Sawyer  563 

Morse  v.  Byam  474a,  478 

V.  Copeland  37 

V.  Goddard  363,  688 

V.  Maddox  588 

V.  Stafford  25 

Morton  v.  Lawson  696 

V.  Leland  71 

V.  Weir  114 


Moseley  v.  Allen  69 
Moser  v.   Lower                   46,  47,  51 

Moses  V.  Loomis  496 

V.  Old  Dominion  &c.  Co.  403 

Mosher  v.  Cole  701,  707 

Moshier  v.  Reding  59 

Moss  v.  Gallimore  25,  422 

Mott  V.  Palmer  714 

Moule  V.  Garrett  411,  451 

Moulton  V.  Faught  45 

V.  Norton  29 
V.  Robinson              52,  54,  55,  568 

Mound  V.  Barker  124 

Mountnoy  v.  Collier  703 

Mounts  V.  Goranson  249 

Moxon  V.  Townsend  401 
Moyer  v.  Mitchell 

319,  323,  324,  404 

Moynihan  v.  Allyn  614,  619 

Mueller  v.  Kuhn  558 

Mugford  V.  Richardson  558 

Muggridge  v.  Eveleth  10 

Muldoon  V.  Hite  455,  456 

Mulford  V.  Young  367 

Mull  V.  Graham  373,  590 

Mullen  V.  Pugh  347 

V.  Rainear  576,  579 

V.  St.  John  607 

V.  Strieker  106,  381 

Mullone  v.  Klein  524 

Mulloy  V.  Kyle  171 

Mulvaney  v.  Gross  462 

Mumford  v.  Brown  404,  588 

V.  Whitney  45 

Mundy  v.  Warner  52 

Munigle  v.  Boston  170,  388 

Munkwitz  v.  Uhlig  469 

Munn  V.  Worrall  63,  110 

Munroe  v.  Carlisle  601 

V.  Luke  651,  657 

V.  Perkins  135,  136 

Munson  v.  Wray  59,  337 

Murdock  v.  Ratcliff  171 

V.  Reed  173 

Murphey  v.  Illinois  &c.  Bank       590 

Murphy  v.  Farley  673 

V.  First  Nat.  Bank  70 

V.  Illinois  588 

Murray  v.  Albertson  577,  578 

V.  Armstrong  81 

V.  Cherrington      112,113,170,240 

V.  Harway  471,  496 

V.  Moross  397 

V.  Richards  596 

Mussey  v.  Holt  86,  363 

V.  Scott  558,  561 

Mutton's  Case  79 

Myers  v.  Burns  331,  369,  408 

V.  Gemmel  106,  359,  381,  681 

V.  Sanders  547 

V.  Silljacks  454 


TABLE    OF    CASES. 


Ixvii 


[References  are  to  Sections.'] 


Myers  v.  Zetelle 
Myerson  v.  Neff 

90 
255 

N 

Nagel  V.  League 
Nally  V.  Reading 
Nance  v.  Alexander 
Napier  v.  Bulwinkle 
Nash  V.  Berkmeir 

496, 
87,  199, 

497 
440 
654 
381 
236 

National  &c.  Asso.  v.  Brewer 

538,  540 
National  &c.  Bank  v.  Hand  389 

Naumberg  v.  Young 

130,  132,  575,  576,  578 

Nave  V.  Berry         133,  382,  393,  431 

Naye  v.  Noezel  631 

Naylor  v.  Arnitt  90 

V.  Collinge  713 

Neal  V.  Brandon  49 

Neale  v.  Mackenzie  15,  364 

Nearing  v.  Coop  682 

Necklace  v.  West  563 

Needham  v.  Allison  573 

Neel  V.  Neel  637 

Neff  V.  Ryman  679,  695 

Negley  v.  Morgan  456,  458 

Nellis  V.  Lathrop  668,  703,  704 

Nelson  v.  Liverpool  &c.  Co.    599,  607 

V.  Oren  324 

V.  Rountree  14 

V.  Thompson  548 

V.  Ware  259,  289,  309 

V.  Webb  5 

Neppach  v.  Jordan  146 

Neuenberger  v.  Neuenbcrger  70 

Neuman  v.  Rutter  474a 

Neumeister  v.  Palmer  207,  555 

Newall  V.  Wright  428,  668 

Newbrough  v.  Walker    140,  369,  371 

Newby  v.  Vestal  29,  654,  655 

Newell's  Appeal  34 

Newell  V.  Gibbs  703 

V.  Sanford  271 

Newhoff  V.  Mayo  376 

Newman  v.  Met.  El.  R.  Co.  105 

Newson  v.  Douglas  666 

V.  Smythies  324 

Newton  v.  Harland  558 

V.  Speare  &c.  Co.  548 

V.  Wilson  10,  669 

New  York  Academy  &c.  v.  Hack- 

ett  592 

New  York  &  B.  Bridge  v.  Clark     680 
New  York  &c.  R.  Co.  v.  Randall 

39,  201 

Neyer  v.  Miller  621 

Nichols  V.  Dusenbury  673 

V.  Sargent  373 

V.  Williams  304 

Nicholson  v.  Munigle  189,  667 


Nickel  V.  Brown                      455,  456 

Nickells  v.  Atherstone           538,  543 

Nickolls  V.  Barnes          75,  180,  218 

Nicoll  V.  Burke  660 

Nicrosi  v.  Phillipi  563 

Niedelet  v.  Wales  674 

Nielander  v.  Chicago  &c.  R.  Co.  70 
Nightingale  v.  Barens   14,  19,  26,  29 

Niles  V.  Ransford  703 

Nindle  v.  State  117 

Nissen  v.  Turner                      701,  707 

Nobles  V.  McCarty  31 

Noel   V.   McCrory       5,  201,  206,  215 

Nokes'  Case  350 

Nokes  V.  Gibbon  491 

Norcross  v.  James  328 

Norman  v.  Wells                     330,  331 

Norris  v.  Harris  487 

V.  Jackson  346 

V.  Morrill                             498,  503 

V.  Showerman  67 

North  V.  Barnum  696 

North  &  South  &c.  Co.  v.  O'Hara  486 
North  Chicago  St.  R.  Co.  v.  Le 

Grand  Co.                      139,  337,  471 
Northern  &c.  R.  Co.  v.  Canton 

Co.  716 

Northern  Bank  v.  Roosa  171 

Northern  Pac.  R.  Co.  v.  McClure  331 

Northrup  v.  Northrup  323 

Northwestern  &c.  Co.  v.  Brant  82 
North      Western      R.      Co.      v. 

M'Michael  92 

Norton  v.  Doe  689 

V.  Wiswall  606 

Norwood  V.  Kirby  682 

Nott  V.  Owen  86 

Newell  V.  Wentworth             302,  523 

Nowlin  Lumber  Co.  v.  Wilson  39 

Noyes  v.  Anderson  491 

V.  Longhead  113 

V.  Stauff                                 98,  100 

V.  Stillman                  604,  644,  646 

Nugent  V.  Boston  &c.  R.  Co.  603 


Oakes  v   Munroe  684 

Oakley  v.  Schoonmaker  29,  668 

Gates  V.  Frith  648 

Oberf elder  v.  Kavanaugh  71 

Obermyer  v.  Nichols  666 

O'Brien  v.  Ball  362 

v.  Cavanaugh  184 

V.  Smith  74.  366 

V.  Troxel  237 

V.  Wetherell  382 

Ocean   Grove  &c.  Asso.  v.  Ber- 

thall  495 

V.  Sanders  487 


Ixviii 


TABLE    OF    CASES, 


[References  are  to  Sections.'] 


Ocean  Steamship  Co.  v.  Hamil- 
ton 587 
O'Connell  v.  M'Grath  489 
O'Connor  v.  Andrews             607,  618 
V.  City  of  Memphis          350,  369 
V.  Daily                               349,  388 
V.  Delaney  28 
V.  Kelly                                       503 
Odell  V.  Durant                               111 
O'Donnell  v.  Mclntyre              3,  709 
O'Fallon  v.  Nicholson                    334 
Ogilvie  V.  Hall                                   364 
Ohio  &c.  R.  Co.  V.  Singletary        645 
Ohio  Iron  Co.  v.  Auburn  Iron 

Co.  494 

O'Keefe  v.  Kennedy  473 

Okey  V.  State  Ins.  Co.  497 

Old  Colony  R.  Corp.  v.  Evans         77 
O'Leary  v.  Delaney  595 

V.  Roe  378 

Oliver  v.  Dickinson 

102,  104,  107,  359,  677 
V.  Gary  683 

v.  Moore  24,  666 

V.  Olmstead  9 

V.  Phelps  663 

Olt  V.  Lohnas  152 

Olympic  Theater  710 

O'Malley  v.  Twenty-five  Associ- 
ates 581,  582,  593 
Ombony  v.  Jones  716,  727 
Oneal  v.  Orr  375 
O'Neil  v.  Davis  427 
V.  Flanagan  392 
O'Neill  V.  Cahill  271 
Oneto  V.  Restano  83 
Onslow's  Case  573 
Orcutt  V.  Isham  356 
V.  Moore  46 
Ordway  v.  Remington  661 
Orleans  Co.  &c.  School  v.  Parker  703 
Ormsby  v.  Dearborn  368 
Orton  v.  Noonan  337,  338,  410 
Osborne  v.  Humphrey  6 
Osgood  V.  Dewey  30 
Oskaloosa    College    v.    Western 

Union  &c.  Co.  383 

Ossowski  v.  Wiesner  545 

Ostotag  V.  Taylor  558 

Ostner  v.  Lynn  661 

Oswald        Fratenburgh  447,  453 

V.  Mollet  424,  426 

Otis  V.  McMillan  421,  427,  428 

Ott  V.  Rape  19 

Otto  V.  Jackson  662 

Otway  V.  Braithwaite  77 

Oury  V.  Saunders  699 

Outtown  V.  Dulin  650 

Overdeer  v.  Lewis    228,  254,  558,  559 
Overman  v.  Sanborn  455 

V.  Sasser  725,  728 


Owens  V.  Lewio' 

V.  Wight 
Owings  V.  Jones 
Oxford  V.  Leathe 


38 

349 

600 

43 


Pacific  &c.  Ins.  Co.  v.  Stroup        702 
Pacific  .Express  Co.  v.  Tyler  &c. 

Co.  13 

Packard  v.,  Cleveland  &c.  R.  Co.    197 

Packer  v.  Rooerts  117 

Padberg  v.  Kennerly  603 

Padelford  v.  Padelford  635 

Page  V.  Culver  422,  667 

V.  De  Puy  228,  561 

V.  Esty  424 

V.  Kinsman  688,  703 

V.  Lashley  427,  670 

V.  McGlinch  2,  442 

V.  Monks  131 

V.  Wight  116 

Paget  V.  Electrical  &c.  Co.  207 

Paige  V.  Akins  1 

Paine  v.  Trinity  Church  376 

Pakenham's  Case  333 

Palethorp  v.  Bergner  372 

Palmer  v.  Bowker  685 

V.  Dearing  614,  621 

v.  Edwards  446 

V.  Ekins  700 

V.  Ford  490,  496 

V.  Melson  700 

V.  Meriden  &c.  Co.  324 

V.  Meyers  550 

V.  Myers  543 

V.  Rich  565 

V.  Wetmore        106,  359,  381,  681 

V.  Young  625,  638 

Palmtag  v.  Doutrick  707 

Panton  v.  Jones  697 

Pappe  V.  Front  216 

V.  Trout  682 

Paradine  v.  Jane  392,  675 

Parent  v.  Callerand  87 

Parer  v.  Manning  700 

Parish  v.  Camplin  637 

V.  Rogers  111 

Park  V.  Castle  194 

V.  Ensign  410 

Parke  v.  Castle  304 

Parker  v.  Foote  106 

V.  Gravenor  318 

V.  HoUis  210 

v.  Kane  541 

V.  Nanson  689 

V.  Page  201,  202,  375 

V.  Parmele  323 

V.  Raymond  682 

V.  Redfield  412 

V.  Shackelford  641 


TABLE   OF    CASES. 


Ixix 


^References  are  to  Sections.^ 


Parker  v.  Tainter  156,  159 

V.  Taswell  346 

V.  Wulstein  724 

Parkhurst  v.  Van  Cortland  387 

Parks  V.  Boston  362 

V.  Hays  486,  503 

V.  Union  Mfg.  Co.  466 

Parmelee  v.  Oswego  &c.  R.  Co.    324 

Parmenter  v.  Webber  446 

Parrish  v.  Commonwealth  49 

Parrott  v.  Barney  628 

V.  Hungelburger  697 

V.  Palmer  638 

Parsons  v.  Roumfort  310 

V.  Wright  505 

Partridge  v.  Strange  85 

Pasteur  v.  Jones  372,  392 

Patchin  v.  Dickerman  533 

Pate  V.  Turner  705 

Patrick  v.  Colerick  44 

Patten  v.  Deshon 

411,  430,  438,  446,  447,  451,  658 

V.  Garrett  656 
Patterson  v.  Graham 

103,  104,  355,  356 

V.  Hansel  697 

V.  Hubbard  98 

V.  Pease  72 

V.  Stoddard  655 

Pattison  v.  Dryer  225 

Paul  V.  Chickering  418 

Pause  V.  Atlanta  643 

Payne  v.  Haine  397,  408 

V.  Irvin  613 

V.  James  628 

V.  Rogers  595,  600 

Payson  v.  Holden  164 

Payton  v.  Sherburne  222,  225,  311 

Peaks  V.  Blethen  112 

Pearce  v.  Nix  697 

Pearcy  v.  Heath  431 

V.  Henley  87 

Pearson  v.  Germond  505 

V.  Sanderson  379 

Peck  V.  Christman  455 

V.  Hensley  435 

V.  Hiler  59 

V.  Jones  362 

V.  Northrop  422 

V.  Peck  116 

V.  Scoville  Mfg.  Co.  394 

Peehl  V.  Bumbalek  201,  317,  340 

Peers  v.  Consolidated  Coal  Co. 

319,  322,  447 

Peil  V.  Reinhart  614>  621 

Peirce  v.  Grice        201,  202,  373,  375 

Peirse  v.  Sharr  446 
Pelton  V.  Minah  Con.  Min.  Co.         22 
V.  Place                        421,  422,  436 

Pemberton  v.  King  725,  727 

Pence  v.  Williams  709 


Pence  v.  St.  Paul  &c.  R.  Co.          468 

Pendergast  v.  Young  366,  421 

Pendill  v.  Eells  357 
V.  Union  Mining  Co. 

490,  498,  504,  558 
Penniall  v.  Harborne  471 
Pennock  v.  Lyons  471 
Penton  v.  Robart  721 
People  V.  Annis          19,  20,  222,  563 
V.  Barker  412 
V.  Bennett  489 
V.  Bigelow  29 
V.  Commissioners,  &c.              412 
V.  Culver  27 
V.  Darling  217,  253 
V.  Dudley  503,  667 
V.  Gedney  107 
V.  Gilbert  487 
V.  Gillis  146 
V.  Goodwin  37 
V.  Ingersoll  89 
V.  Kelsey  143 
V.  McCarty  489 
V.  Mayor  85 
V.  Paulding  251 
V.  Rickert  180,  217 
V.  St.  Nicholas  Bank  146 
V.  Schackno  253 
V.  Simonson  125 
V.  Stuyvesant  668 
V.  Walden  586 
People's  Ice  Co.  v.  Steamer  Ex- 
celsior 9 
People's  Loan  &c.  Asso.  v.  Whit- 
more  702 
Peoples  V,  Evens  199 
Peoria  v.  Simpson  607 
Pepper  v.  Rowley  381 
Peralta  v.  Ginochio  126,  698 
Perez  v.  Rabaud       574,  580,  595,  598 
Perine  v.  Teague  177,  221 
Perkerson  v.  Snodgrass  670 
Perkins  v.  Hadsell  387 
V.  Morse  87 
V.  Peterson  Hg 
V.  Potts  705 
v.  Swank  725 
V.  Washington  Ins.  Co.  389 
Perrin  v.  Lepper  421,  422,  430 
Perrinc  v.  Cheeseman  74 
Perry  v.  Aldrich  661,  667 
V.  Bailey  641 
V.  Carr  573,  627 
V.  Hamilton  571 
V.  Wall  361 
Peter  v.  Schley  164 
Peters  v.  Balke  221,  254 
V.  Barnes  441 
v.  Elkins  651 
V.  Fisher  566 
V.  McKeon  140 


Ixx 


TABLE    OF    CASES. 


IReferences  are  to  Sections.'] 


Peterson  v.  Edmonson 

675 

V.  Haight 

377 

V.  Krenger 

505 

V.  Smart 

579 

Petsch  V.  Biggs 

159, 

261 

Pettingill  v.  Evans 

627 

V.  Porter 

104 

Pettigrew  v.  Mills 

682 

Petty  V.  Malier 

2, 

257 

Pettygrove  v.  Rothchild  497 
Petz  V.  Voigt  Brewing  Co.            588 
Pevey  v.  Skinner  108 
Peyton  v.  Stith  474a 
Pfaff  V.  Golden  430,  447 
Pharis  v.  Jones  692 
Phelan  v.  Anderson  180 
V.  Boylan  637,  639 
Phelps  V.  Illinois  &c.  R.  Co.        498 
V.  Long  261 
Phene  v.  Popplewell  538,  540,  553 
Philadelphia  &c.  R.  Co.  v.  Ap- 
peal Tax  Court  412,  413 
Philips  V.  Doe  487 
Phillbrook  v.  Emswiler  132 
Phillips  V.  Covert  488,  627 
V.  Doe  503 
V.  Monges  202 
V.  Reynolds  343 
V.  Robertson  199 
V.  Rothwell  688 
V.  Stevens  392,  393 
V.  Sun  Dyeing  &c.  Co.             394 
V.  Vandergrift  495 
Phillips  &c.  Mfg.  Co.  V.  Whitney  679 
Philpot  V.  Hoare  466 
Phippen  v.  Stickney  346 
Phipps  v.  Ingrahm  148 
V.  Sculthorpe  693 
Phoenixville  Borough  v.  Walters  201 
Pickard  v.  Kleis  487 
v.  Perley  265,  269 
Pickett  V.  Breckenridge  709 
V.  Ferguson  349,  703,  704 
Pico  V.  Phelan  2 
Pierce  v.  Brown  689,  703 
V.  Grice  726 
V.  Joldersma  410 
V.  Minturn  99,  659,  682 
Pierre  v.  Fernald  381 
Pierrepont  v.  Barnard  36,  38 
Pierson  v.  Doe  255 
V.  Glean  604 
Piggot  V.  Mason  343 
Pike  V.  Brittan  623 
V.  Brown  77,  462 
Pike  &  Hassen's  Case  558 
Pilkington  v.  Shaller  458 
Pillshury  v.  Moore  603,  604 
v.  Morris  132 
Pinero  v.  Judson  79,  195 
Pingrey  v.  Watkins  669 


Pinhorn  v.  Souster  188,  191,  254 
Pintard  v.  Irwin  379 
Pioneer  Press  Co.  v.  Hutchinson  673 
Piper  V.  Fletcher  408,  410 
Pistol  V.  Riccardson  171 
Pitcher  v.  Tovey  447 
Pittfiell  V.  Ewing  267 
Pitkin  V.  Leavitt  370 
Pitman  v.  Poor  45 
V.  Woodbury  75 
Pittsburgh  &c.  R.  Co.  v.  Thorn- 
burgh  654 
Plaisted  v.  Palmer  61 
Planters'  Ins.  Co.  v.  Dlggs  495,  496 
Plato  V.  Roe  19,  26 
Piatt  V.  Farney  579,  614 
Platto  V.  Gettelman  722 
Playter  v.  Cunningham  366 
Pleasant  v.  Benson  446 
Ploen  V.  Staff  409,  592,  593 
Pluck  V.  Digges  446 
Plumer  v.  Harper  604 
V.  Plumer  573,  682 
v.  Currier  570 
Plymouth  v.  Throgmorton  661,  667 
Poindexter  v.  Blackburn  571 
Polack  V.  Pioche  392 
V.  Shafer  63 
Polk  V.  Reynolds  164 
Polley  V.  Johnson  567 
Pollock  V.  Whipple  522 
Pollok  V.  Kelly  88 
Pollman  v.  Morgester  372 
Pomeroy  v.  Lambeth  373 
Pomfret  v.  Ricroft 

404,  588,  612,  626.  647 

Pond  v.  Holbrook  69 

Ponder  v.  Rhea  48,  53 

Pool  V.  Lamb  701 

Poole's  Case  711,  716 

Poole  V.  Bently  141 

V.  Engelke  221 

Pope  V.  Boyle  605 

V.  Garland  197 

V.  Harkins  658 

V.  Linn  61 

Poposkey  v.  Munkwitz  370 

Poppers  V.  Meagher  255 

Pordage  v.  Cole  321.  323 

Port  V.  Jackson  447,  462 

Porter  v.  Bleiler  12 

V.  Hammond  479 

V.  Hooper  654 

V.  Hubbard  3 

V.  Mayfield  693 

V.  Merrill  24 

V.  Noyes  547 

V.  Tull  675,  677 

V.  Witham  642 

Portington's  Case  327 

Post  V.  Davis  137a,  140 


TABLE   OF    CASES. 


Ixxi 


{References  are  to  Sections.'] 


Post  V.  Kearney      328,  411,  446,  455 

V.  Phelan  22 

V.  Post  178 

V.  Vetter  404 

Postal  Tel.  &c.  Co.  v.  Western 

Union  &c.  Co.  382,  384 

Poston  V.  Jones  364,  669 

Potter  V.  Arnold  440 

V.  Bassett  81 

V.  Bower  213 

V.  Cunningham  53 

V.  Mercer  37,  146,  162 

Ponder  v.  Catterson  683 

Poultney  v.  Holmes  439 

Powell  V.  Bergner  725 

V.  Crampton  159 

V.  Dayton  &c.  R.  Co.  627 

V.  F.  C.  Linde  Co.  128 

V.  McAshan  131 

Powers  V.  Cope  392 

Powley  V.  Walker  631 

Pratt  V.  Farrar 

187,  188,  226,  254,  559 
V.  Hudson  River  Co.  138 

Pray  v.  Stebbins  87,  88 

Preble  v.  Hay  255 

Prentiss  v.  Wood  604 

Presby  v.  Benjamin  464,  468 

Presbyterian  Church  v.  Pickett 

486,  487 

Prescott  V.  De  Forest  446 

V.  Elm  253,  2C1 

V.  Otterstatter  410 

Preston  v.  Hawley  654 

V.  Ryan  567 

Presstman  v.  Silljacks  703 

Pretty  v.  Bickmore  599 

Prettyman  v.  Walston 

413,  637,  639,  690 

Prevot  V.  Lawrence  697 

Price  V.  Assheton  343 

V.  Leyburn  200 

V.  Pickett  566 

Prichard  v.  Tabor  33 

Prickett  v.  Ritter  215 

Pridgeon  v.  Boat  Club  353 

V.  Excelsior  Boat  Club  105 

Priest  V.  Nichols  612 

Priestley  v.  Johnson  713 

Prindergast  v.  Searle  272 

Prior  V.  Kiso  538 

Probst  V.  Rochester  &c.  Co.  342 

Proctor  V.  Keith 

392,  393.  404,  495,  588,  598 
V.  Tows  229 

Proffitt  V.  Henderson  625,  635 

Propagation  Society  v.  Sharon      58 
Proprietors  &c.  v.  Hilton  319 

Proprietors  of  No.  6  v.  McFarland    30 
Proprietors,  &c.  v.  State  59 

Prosser  v.  Pretzel  628 


Proudfoot  V.  Hart 

397, 

401 

Prout  V.  Roby 

387, 

428 

Providence  &c.  Bank  v 

Hall 

201,  206, 

215 

Providence  &c.  Union 

V.  Ellott 

77 

,  80 

Providence    Co.    Sav. 

Bank    v. 

Phalen 

531, 

705 

Providence  v.  St.  John 

's  Lodge 

379 

Provost  V.  Hallett 

403 

Pryor  v.  Foster 

128, 

592 

Pugh  V.  Arton 

716 

V.  Chesseldine 

158, 

437 

V.  Davis 

682 

V.  Duke  of  Leeds 

119 

Pulse  V.  Hamer 

146, 

162 

V.  Miller 

98 

Pulteney  v.  Shelton 

573 

Purcell  V.  English  373, 

404,  594, 

615 

Pursel  V.  Teller 

580 

Purvis  V.  Rayer 

435 

Pust  V.  Dowie 

324 

Putnam  v.  Ritchie 

8S 

,  90 

V.  Smith 

110 

V.  Westcott 

172 

V.  Wise 

48,  5C 

,  54 

V.  Wyley 

10 

Pynchon  v.  Stearns 

388,  631, 

633 

Q 

Quackenboss  v.  Clarke  442 

Quackenbush  v.  Sawyer  50 

Quay  V.  Lucas  595 

Quertermous  v.  Hatfield  31 

Quincy,  Ex  parte  716 

Quincy  v.  Carpenter  389 
Quincy  &c.  R.  Co.  v.  Humphreys  443 

Quinette  v.  Carpenter  201 

Quinlan  v.  Bonte  206 

Quinn  v.  Perham  619 

V.  Quinn  696 

R 

Raband  v.  Frank  642 

Rabe  v.  Fyler  257 

Radley  v.  O'Leary  519 

Ragan  v.  Simpson  19,  26 

Ragsdale  v.  Kinney  56 

V.  Lander  200 

Railsback  v.  Walke  199 

Railton  v.  Taylor  574,  586 

Rainey  v.  Capps  5,  61 

Railway  v.  Smith  640 

Ralph  V.  Lockwood  49 

Ralston  v.  Boady  121,  122 

Ramsay  v.  Blair  63 

Ramsdell  v.  Maxwell  226 

Rand  v.  Purcell  213 

Rand  &c.  Co.  v.  Wickham  126,  127 


Ixxii 


TABLE    OF    CASES. 


[References  are  to  Sections.'] 


Randall  v.  Cleaveland 

626 

Reese  v.  Caffee 

682 

V.  Rich 

543, 

551 

Reeve  v.  Bird 

365 

V.  Thompson 

549 

Reeves  v.  Hyde 

673 

V.  President  &c. 

318 

Reg.  V.  St.  George's  Union 

23 

V.  Chubb 

431 

Reid  V.  John  F.  Wiessner  Brew- 

V. President  &c. 

322 

ing  Co.                   455,  456, 

463, 

471 

Randol  v.  Scott 

466, 

473 

Reiff  V.  Reiff 

566 

V.  Tatum             465,  473, 

495, 

497 

Reilly  v.  Ringland 

570 

Randolph  v.  Carlton 

703 

Reithman  v.  Brandenburg 

267 

V.  Helps 

132 

Remington  v.  Linthicum 

444 

Rank  v.  Rank 

569 

Remsen  v.  Conklin 

503 

Ranlet  v.  Cook 

338, 

343 

Reniger  v.  Fogossa 

322 

Rann  v.  Hughes 

74 

Rennell  v.  Kimball 

131 

Rashleigh  v.  South  Eastern  R. 

Reno  V.  Mendenhall 

392, 

673 

Co. 

319 

Renoud  v.  Daskam 

339 

Ratcliff  V.  Bellfonte  Iron  Works 

Renwick  v.  Morris 

562 

Co. 

709 

Resser  v.  Corwin 

125, 

126 

Ratkowski  v.  Masolowski 

366 

Reusens  v.  Lawson 

696 

Rawlings  v.  Duvall 

462 

Rex  v.  Bake 

556 

Rawlins  v.  Turner 

74 

V.  Bathhurst 

556 

Rawlyns'  Case 

421 

V.  Cheshunt 

20 

Rawson  v.  Babcock 

224 

V.  Collett 

175 

Ray  V.  Ayers 

641 

V.  Horndon 

36 

V.  Western  Pa.  &c.  Co. 

87 

V.  Horndon-on-the-Hill 

36,  44 

Raybourn  v.  Ramsdell 

502 

V.  Little  Dean 

74 

Rayburn  v.  Mason  Lumber  Co. 

663 

V.  Pedly 

599, 

604 

Raymond  v.  Andrews 

566 

V.  Philipps 

122 

V.  Krauskopf 

136 

V.  St.  Nicholas 

710 

V.  White 

725 

V.  Sutton 

89 

Raynor  v.  Drew 

154 

V.  Topping 

715 

V.  Valentine  Blatz  &c.  Co. 

370 

v:  Wilson 

556 

V.  Wilson 

541 

Reybold  v.  Reybold 

322 

Read  v.  Allen 

692 

Reynolds  v.  Chynowith 

52, 

631 

V.  Pennsylvania  R.  Co. 

827 

V.  Commissioners 

171 

V.  Tuttle 

483 

v.  Davison 

130 

Readey  v.  American  &c.  Co 

456 

V.  Greenbaum 

83 

Reading  Iron  Works 

67 

V.  Lewis 

701 

Readman  v.  Conway 

618, 

620 

V.  Pitt 

492 

Ream  v.  Harnish 

53 

V.  Shuler 

721 

Reay  v.  Cotter 

563 

V.  Williams 

640 

Rector  v.  Buckhart 

607 

Rhett  V.  Poe 

662 

V.  Hartford  Deposit  Co. 

447 

Rhode  Island  Hospital  &c.  Co.  v. 

Rector  &c.  v.  Higgins 

420 

Baxter 

388 

Rector  of  Chedington's  Case 

112 

Rhodes  v.  Baird 

140 

Redding  v.  Hall 

675 

V.  Bullard 

588 

Redington  v.  Browne 

111 

Rhone  v.  Gale 

389 

Redman  v.  Bedford 

52 

671 

Rhyne  v.  Guevara 

703 

Reed  v.  Bartlett 

94 

Rice  V.  Baker 

464 

V.  Hawley 

265 

V.  Brown 

74 

146 

V.  Kitchen 

6 

V,  Dudley                   365, 

549 

551 

V.  Lewis              112,  116 

382 

384 

V.  Loomis 

662 

V.  Reed 

186 

V.  Stone 

494 

495 

1        V.  Reynolds 

367a 

V.  Whitmore 

85 

V.  Shepley 

699 

Rich  V.  Basterfield 

603 

V.  Snowhill 

403 

V.  Bolton             185,  197 

215 

254 

V.  Todd 

691 

Richard  v.  Bestor 

64 

V.  Ward 

668 

Richard  C.  Tavener's  Case 

10 

Reeder  v.  Bell 

20 

,  475 

Richards  v.  Gauffret 

40 

V.  Purdy 

228 

,  561 

V.  Killam 

652 

V.  Sayre 

180 

,  199 

v.  Wardwell 

53 

Rees  V.  Lowry 

447 

Richardson  v.  Bates 

72, 

TABLE    OF    CASES. 


Ixxia 


{References  are  to  Sections.'] 


Richardson  v.  Chasen  140 

V.  Copeland  715 

V.  Gifford  75 

V.  Langridge  197 

V.  Richardson      89,  651,  654,  657 

Richburg  v.  Bartley  497 

Richey  v.  Du  Pre  49 

V.  Hinde  651,  653,  654 

Richmond  v.  Connell  54 

V.  Davis  91,  111 

Richmond  &c.  R.  Co.  v.  Durham    37 

Richmond  &c.  Tp.  Co.  v.  Rogers      29 

Richmond  Ice  Co.  v.  Crystal  Ice 

Co.  675,  681 

Ricliards  v.  Rickards  343 

Ricketson  v.  Galligan  682 

Riddle  v.  Brown  41 

V.  Dow  54 

V.  Hill  93 

V.  Hodge  547 

V.  Littlefield  107,  108 

Rider  v.  Clark  599 

Ridge  V.  Railroad  Transp.  Co. 

641,  644 

Ridgely  v.  Stillwell  174,  251 

V.  Stillwell  197,  661 

Ridgway  v.  Stafford  53 

Riggs  V.  Rursell  464,  466 

Right  V.  Beard  183 

V.  Cuthell  265,  269 

V.  Darby  201 

Riley  v.  Farnsworth.  156 

V.  Hale  368,  369 

V.  Jordan  29,  35 

V.  Pettis  County  408 

V.  Simpson  605,  606 

Rinehart  v.  Olwine  53 

Ripley  v.  Wightman  678 

V.  Yale  627 

Rising  V.  Stannard  86,  570,  713 

Rising  Sun  Lodge  v.  Buck  318 

Rispini  v.  Porta  549 

Rives  V.  Nesmith  689 

R.  J.  Gunning  Co.  v.  Cusack  40 

Roach  V.  Cosine  19,  26,  563 

V.  Peterson  .                 206 

Roads  V.  Symmes  72 

Robb  V.  Montgomery  323 

Robbins  v.  Atkins  597,  620 

V.  Conway  498 

V.  Jones  579,  585,  595 

Roberson  v.  Simons  201,  204,  251 

Roberts  v.  Barker  573 

V.  Bettman  495 

v.  Davey  483,  495 

V.  Grubb  274,  283 

v.  Hayward  267 

V.  Nelson  71 

V.  Robertson  63 

V.  Tennell  199,  200 

V.  Wiggin  92 


Robertson  v.  Amazon  &c.  Co.       578 
V.  Bidden  682,  703 
V.  French  68 
V.  George  640 
V.  Hayes  111 
V.  Norris  "           88 
Robey  v.  Prout  482 
Robins  v.  Cox  430 
V.  Kitchen  702 
Robinson  v.  Boys  494,  497 
V.  Deering  186,  667 
V.  Eagle  87 
V.  Harman  140 
V.  Lehman  445 
V.  L'Engle  675 
V.  Perry  431 
V.  State  386 
v.  Troup  Min.  Co.  703 
-Rochester  Lodge  No.  21  v.  Gra- 
ham 328 
Rochford  v.  Hackman  466 
Roe  V.  Archbishop  538,  541 
V.  Ashburner  141,  142 
V.  Galliers  466 
V.  Harrison  473,  497 
V.  Hodgson  90 
V.  Lees  197 
V.  Sales                        464,  467,  469 
V.  Street  272,  273 
V.  Ward  202,  261 
Roff  V.  Duane  76,  556 
Rogan  V.  Dockery  404 
Rogers  v.  Brown  216 
V.  Coy  1,  40 
V.  Grider  87 
V.  Humphreys  94 
V.  Libbey  651 
V.  McKenzie  422 
V.  Pitcher  198 
V.  Saunders  387 
V.  Sawin  359 
V.  Snow                       102,  677,  679 
V.  Waller  682 
V.  Wheaton  197 
Rohrer  v.  Babcock  54 
Rollins  V.  Moody  258,  293 
V.  Proctor  137 
Ronald  v.  Barkley  89 
Rood  V.  Willard  85 
Rooks  V.  Moore  9 
Rooney  v.  Gillespie  428 
Roosevelt  v.  Hopkins  468.  469 
V.  Hungate  257 
Rose  V.  Bartlett  171 
v.  Riddle  434 
Rose  Clare  Lead  Co.  v.  Madden      70 
Rosen  v.  Rose  154 
Rosenblat  v.  Perkins  180,  308 
Rosenfield  v.  Newman  616 
Rosenthal  v.  Freeburger  160 
Rosewell  v.  Prior          599,  603,  604 


Ixxiv 


TABLE    OF    CASES. 


\_References  are  to  Sections. '\ 


Ross  V.  Campbell  718 

V.  Cobb  89 

V.  Dysart  362 

V.  Garrison  182 

V.  Gill  89,  90 

V.  McManigal  695 

V.  Schneider  236,  441 

V.  Stockwell  410,  672,  673 

V.  Swaringen  55 

Rosseel  v.  Jarvis  478 

Roth  V.  Collins  725 

Rothbauer  v.  State  14 

Rothschild  v.  Hudson  97 

V.  Williamson  215,  236 

Rotter  V.  Goerlitz  357 

Rowan  v.  Lytle  220,  230,  541 

Rowbotham  v.  Pearce  360 

Rowe  V.  Baber  673 

V.  Williams  661 

Rowlands  v.  Voechting  52,  53 

Rowsey  v.  Lynch  420 

Roxbury  v.  Haston  651 

Royce  v.  Guggenheim  354,  576 

V.  Latshaw  727 

Rubery  v.  Jervoise  339 

Rudolph  V.  Herman  670 

Rump  V.  Schwartz  496 

Russell  V.  Allard     523,  682,  700,  703 

V.  Doty  85 

V.  Erwin  3,  81 

V.  Fabyan  226,  336,  660,  667 

V.  McCartney  219 

V.  Richards  713 

V.  Rush  629 

V.  Russell  19,  563 

Rutgers  v.  Hunter  343 

Rutherford  v.  Ullman  705 

Rutland  &c.  Co.  v.  King  672 

Rutz  V.  Kehn  109 

Ryan  v.  Clark  15,  458 

V.  Kirchberg  545 

V.  Mills  256 

V.  Potwin  121,  124 

V.  Wilson  585 

Ryder  v.  Faxon  131 

V.  Mansell  703,  704 

V.  Robinson  138 

Ryerson  v.  Quackenbush 

430,  648,  658 

Ryley  v.  Hicks  147 


Sabastian  v.  Ford  682,  703 

Sackett  v.  Barnum  31 

V.  Sackett  625,  639 

Sage  V.  Halverson  682 
St.  Andrews  Lutheran  Church's 

Appeal  331 

St.    Anthony    Falls  &c.    Co.    v. 

Morrison  688 


St.  John  V.  Palmer  354 

V.  Quitzon  703 

St.  Joseph  &c.  R.  Co.  v.  St.  Louis 

&c.   R.   Co.  397,  445,  446 

St.  Louis  V.  Kaime  610 

V.  Regenfuss  413 

St.  Louis  &c.  R.  Co.  V.  Hart  651 

V.  Trigg  645 

St.  Louis  &c.  Yards  v.  Wiggins 

Ferry  Co.  565 

St.  Louis  Pub.  Schools  v.  Boat- 
men's Ins.   Co.  458,  460,  669 

V.  Hollingsworth  110 

Salisbury  v.  Andrews 

V.  Shirley 
Sallada  v.  James 
Salmon  v.  Matthews 

V.  Smith 
Salmon  Falls  Mfg  Co. 

dard 
Salomon  v.  O'Donnell 
Salop  V.  Crompton 
Salzberger  v.  Mickel 
Sampson  v.  Burnside 

V.  Henry 
Samson  v.  Rose 
Samuelson  v.  Cleveland  &c.  Co. 

603,  605 
San  Antonio  v.  French 
Sanborn   v.   Chamberlin 

V.  Colman 

V.  First  Nat.  Bank 

V.  French 

V.  Woodman 
Sanders  v.  Ellington 

V.  Partridge 

438,  439,  440,  447,  456,  458 


353 
328,  417,  455 
572 
667 
364 
God- 
158,  437 
281 
627 
388 
39,  45 
228,  559 
484,  493 


202 

444 

10 

59 

87 

491 

547,  569 


V.  Pope 

V.  Richardson 

V.  Sharp 

V.  Smith 
Sands  v.  Pfeiffer 
Sanford  v.  Herron 

V.  Johnson 
Sanitary  Dist.  v.  Cook 
Sansing  v.  Risinger 
Sargent  v.  Adams 

V.  Courrier 

V.  Pray 

V.  Robertson 

V.  Smith 

V.  Stark 

V.  Towne 
Sarles  v.  Sarles 
Sarsfield  v.  Healy 
Sartwell  v.  Sowles 
Sauer  v.  Meyer 
Saunders'  Case 
Saunders  v.  Moore 
Saunderson  v.  Hanson 
Sausser  v.  Steinmetz 


491 
224 

82 
592 
715 

12 

181 

718 

445 

101,  110 

53 
412,  418,  420 
135 
566 
606 
635 
635 
178 
180,  251 
486 
637 
697 
413 
162 


TABLE   OF    CASES. 


Ixxv 


IReferences  are  to  Sections.} 


Sawyer  v.  Hanson 

V.  McGillicuddy 
Say  V.  Smith 

V.  Stoddard 
Sayers  v.  Hoskinson 
Scales  V.  Anderson 
Scanlan  v.  Wright 
Schaefer  v.  Henkel 

V.  Silverstein 
Schee  v.  Wiseman 
Scheelky  v.  Koch 
Scheerer  v.  Dickson 
Scheldt  V.  Belz 
Schenck  v.  Stumpf 
Schile  V.  Brokhahus 
Schilling  v.  Holmes 

V.  Klein 
Schley  v.  Fryer 
Schlicht  V.  Callicott 
Schluter  v.  Harvey 
Schmalz  v.  Mead 
Schmidt  v.  Pettit 
Schmitz  V.  Lauferty 
Schmucker  v.  Sibert 
Schmohl  V.  Fiddick 
Schnittger  v.  Rose 
Schneider  v.  Lord 

V.  Patterson 


18,  25 

614 

112 

174,  431 

636,  637 

2,  651,  654 

87 

81 

504 

171 

340 

629 

328,  422 

87,  687 

371 

266 

555 

463 

50 

670 

378 

393 

154,  236 

76 

67 

508 

218 

99 


School  District  No.  11  v.  Batsche 

20,  222,  296 
Schrage  v.  Miller  378 

Schreiber  v.  Chicago  &c.  R.  Co.     255 
Schreiner  v.  Stanton  247,  367 

Schroeder  v.  Gemeinder         387,  454 
V.  King  468 

Schuisler  V.  Ames    206,  547,  549,  551 
Schulenberg  v.  Harriman  446 

Schulte  V.  Schering  70,  71 

Schulting  V.  Schulting  637 

Schutt  V.  Large  541 

Schuylkill  &c.  R.  Co.  v.  Schmoele   362 
Schuyler  v.  Leggett  180,  199 

V.  Smith  206,  209 

Schwandt  v.  Metzger  &c.  Co.        614 
Schwartz  v.  Salter  627 

Scmitz  V.  Lauferty  152 

Scofield  V.  Lansing  565 

Scott  V.  Beecher 

202,  204,  205,  210,  549 

V.  Haverstraw  &c.  Co.  397 

V.  Levy  704 

V.  Lunt  422 

V.  Scott  669 

V.  Simons  576,  586,  588 

V.  Society  &c.  418 

V.  Willis  114 

Scriven  v.  Moote  572 

Scudder  v.  Anderson  710 

Seago  V.  Deane  199 

Seaman  v.  Ashchermann       138,  162 

V.  Civill  428 


Sears  v.  Smith       152,  201,  202,  267 
Seaver  v.  Coburn  81,  471 
V.  Thompson  69 
Seavey  v.  Cloudman  186,  293 
Sebastian  v.  Hill  216 
Second  Nat.  Bank  v.  O.  E.  Mer- 
rill Co.                             213,  720,  721 
Second  Unitarian  Soc.  v.  Wood- 
bury 91 
Secor  v.  Pestana             210,  212,  255 
Seeger  v.  Smith  519 
Seevers  v.  Gabel  393 
Seidel  v.  Bloeser  102 
Selb  v.  Montague  422 
Semmes  v.  United  States  226 
Serfling  v.  Andrews  369,  371 
Sexton  V.  Carley             503,  682,  699 
V.  Chicago  Storage  Co. 

446,  456,  494 

V.  Hull  33 

Seyfert  v.  Bean  81 

Schaaber  v.  Reading  City  226 

Shackford  v.  Coffin  581 

Shaffer  v.  Stevens    53,  168,  570,  571 

Shaft  V.  Carey                  104,  353,  551 

Shahan  v.  Herzberg  547 

Shakespeare  v.  Alba  161 

Shallenberger  v.  Ashworth  88 

Shally  v.  Shute  353 

Shamp  V.  White  337,  339 

Shannon  v.  Comstock  140 

Sharon  Iron  Co.  v.  Brie  471 

Sharp  V.  Kensman  558 

V.  Milligan  391 

Shattuck  V.  Gragg  626 

V.  Lovejoy  465,  659 

Shanfelter  v.  Horner  504 

Shaw  V.  Appleton  388 

V.  Farnsworth       5,  143,  145,  146 

V.  Hill  6 

V.  Hoffman  170,  557 

V.  McCarty  489 

V.  Mayer  49 

V.  Partridge  328,  447 

V.  Schietinger  219,  303 

V.  Wallace  110 

Shawmut  &c.  Bank  v.  Boston 

102,  474,  677 

Sheaff  V.  Husted  709 

Sheaffer  v.  Sheaffer  483 

Shearer  v.  Handy  413 
Shedlinsky  v.  Budwelser  &c.  Co.  121 

Sheer  v.  Fisher  629 

Sheets  v.  Allen  199 

V.  Joyner  350,  361 
V.  Selden 

323,  384,  404,  467,  588,  676 

Shelby  v.  Hearne  331 

Sheldon  v.  Dunlap  660 

v.  Hamilton  412,  414 

Shell  v.  West  682 


Ixxvi 


TABLE    OF    CASES. 


[References  are  to  Sections. 1 


Shelton  v.  Carrot 

697 

Sims 

V.  Cooper 

257 

V.  Codman 

352 

V. 

Humphrey         19 

33, 

230, 

563 

V.  Doe 

688 

Singer  Mfg.  Co.  v.  Sayre 

210 

Shenandoah  Land  &c.  Co.  v. 

Hlse 

488 

Sinnard  v.  McBride 

651 

Shepard  v.  Martin 

682 

Sinton  v.  Butler 

593 

V.  Philbrick 

572 

Sisson  V.  Kaper 

124, 

126 

Shepardson  v.  Elmore 

417 

Skaggs  V.  Elkus 

207, 

215 

Shepherd  v.  Cummings     5, 

180, 

199 

V. 

Emerson 

364, 

365 

Sheppard  v.  Rosenkrans 

342 

Skally  V.  Shute 

354, 

365, 

381 

Shepperd  v.  Thompson 

554 

Skidmore  v.  Pittsburg  &c.  R.  Co. 

84 

Sherburne  v.  Jones 

178, 

570 

Skinner  v.  Skinner 

1 

Sherlock  v.  Thayer 

661 

Slacum  V.  Brown 

543 

Sherman,  Ex  parte 

466 

Slator  V.  Brady 

95 

V.  Cobb 

346 

Sloan 

V.  Cantrell 

326, 

388 

V.  Spaulding 

703 

Sloat 

V.  Rountree 

285, 

555 

V.  Wilder 

121, 

124 

Slocum  V.  Despard 

324 

V.  Williams 

102, 

354 

Slyfield  v.  Cordingly 

129 

Sherrill  v.  Connor 

625, 

633 

Smal 

V.  Clark 

494 

Sherwood  v.  Harral 

389 

Smalley  v.  Mitchell 

686 

V.  Seaman 

613 

Smart  v.  Smith 

688 

Shew  V.  Call 

682 

Smell 

ing  V.  Valley 

159, 

160 

Shields  v.  Kimbrough 

55 

Smiley  v.  McLauthlin 

319, 

652 

V.  Lozear 

555 

V. 

Van  Winkle 

446 

Shiffer  v.  Broadhead 

560 

Smith,  Ex  parte 

667 

Shillito  V.  Pullan 

428 

V. 

Allt 

210 

Shine  v.  Wilcox 

636 

V. 

Asbell 

474a 

Shiner  v.  Abbey- 

651 

V. 

Atkins 

53 

Shipley  V.  Fifty  Asso. 

602, 

618 

V. 

Barrie 

382 

Shipman  v.  Mitchell        201, 

210, 

253 

V. 

Bell 

206, 

297, 

555 

Shirk  V.  Hoffman 

215 

V. 

Benson 

713 

Shores  v.  Brooks 

560 

V. 

Blake 

663 

Shouse  V.  Krusor 

28 

V. 

Brinker 

458 

Shrewsbury's  Case 

627 

V. 

Brown 

373 

Shrewsbury  v.   Gould 

321 

V. 

Bushy 

323 

Shrum  v.  Simpson 

50 

V. 

Clark 

273 

Shultz  V.  Elliott 

697 

V. 

Coe 

177, 

391 

V.  Spreain 

668 

V. 

Coker 

709 

Shuman  v.  Smith 

369 

V. 

Cooke 

638 

Shumway  v.  Collins   365, 

383, 

465 

V. 

Countryman 

580 

Shuver  v.  Klinkenberg 

289 

V. 

Detroit  &c.  Asso 

.  518,557 

,558 

Siefke  v.  Koch 

471 

V. 

Devlin 

131 

Siegel  &c.  Co.  v.  Colby 

117 

V. 

Dodds 

171, 

349 

Siems  v.  Pierre  Sav.  Bank 

670 

V. 

Elliott 

603 

Sievers  v.  Brown 

30 

V. 

Goodman 

461, 

466 

Sigmund  v.  Howard  Bank 

V. 

Harrison 

328 

447 

658 

349, 

361, 

366 

V. 

Hess 

408 

V.  Newspaper  Co. 

75 

V. 

Hill 

280 

Silbar  v.  Ryder 

70 

V. 

Houston 

227 

Sigur  V.  Lloyd 

373 

V. 

Humble 

412 

Silsley  v.  Allen 

197, 

261 

V. 

Ingram 

456, 

457, 

461 

Silva  V.  Campbell 

497, 

498 

V. 

Jewett 

635 

Simers  v.  Saltus 

703 

V. 

Kerr 

404, 

405, 

543 

Simkins  v.  Cordele  Compress  Co. 

400 

V. 

Littlefield 

Simmons  v.  Robertson 

705 

220,  221,  226, 

227 

230 

255 

V.  Simmons 

160 

V. 

McEnany 

364. 

365 

Simonds  v.  Turner 

415 

V. 

McLean 

675, 

677, 

679 

Simonton  v.  Loring 

624 

V. 

Marrable 

578 

Simpkins  v.  Rogers 

6 

185 

V. 

Martin 

102 

Simpson  v.  Applegate 

257 

280 

V. 

Meech 

50 

V.  Wood 

121 

124 

V. 

Miller 

109, 

495 

Sims  V.  Bond 

158 

V. 

Mundy 

688 

TABLE    OF    CASES. 


Ixxvii 


\_References  are  to  Sections.'} 


Smith  V.  Newman  690 

V.  Niles  322 

V.  Park  93,  555,  719,  723 

V.  Peat  449 

V.  Pendergast  539 

V.  Phillips  371 

V.  Price  389,  728 

V.  Putnam  466 

V.  Raleigh  354,  365 

V.  Rector  &c.  374 

V.  Reeder  557,  558 

V.  Saint  Michael  23 

V.  Saratoga  Co.  &c.  Ins.  Co.     496 

V.  Scanlan  704 

V.  Schultz  50,  52,  53 

V.  Shepard  364 

V.  Simons  45 

V.  Singleton  224 

V.  Smith     151,  242,  258,  440,  691 

V.  State  579,  585,  608 

V.  Stewart  3,  655 

V.  Sutton  682 

V.  Turnley  433 

V.  Waggoner  714 

V.  Walsh  579 

V.  Whitbeck  503 

V.  White  124 

V.  Whitney  725 

V.  Wise  365 

V.  Wooding  30 

Smithwick  v.  Ellison  573 

Smyth  V.  Tankersley  48,  53 

Smythe  v.  Sprague  164 

Snead  v.  Tretjin  575 

Snedaker  v.  Powell  21 

Sneed  v.  Jenkins  363 

Snelson  v.  Franklin  435 

Snook  V.  Sutton  89 

Snow  V.  Pulitzer  370,  371 

Snowden  v.  Memphis  Park  Asso.    444 

Snydam  v.  Jackson  628 

Snyder  v.  County  Com'rs  132 

V.  Hersberg  108 

V.  Parker  299,  442 

Sobey  v.  Brisbee  152 

Sohier  v.  Eldredge  635 

Somers  v.  Joyce  47 

V.  Loose  488 

Sommers  v.  Reynolds  468 

Sortwell  V.  Hughes  121 

Souders  v.  Vansickle  25 

Souffrain  v.  McDonald  387 

Soule  V.  Union  Bank  389 

Sourwine  v.  Truscott  137a 

Souter  V.  Drake  435 

South  V.  Marcum  701 

Southard  v.  Central  R.  Co.  446 

Southern  R.  Co.  v.  Georgia  644 

Sovereign  v.  Ortmann  38 

Spafford  v.  Meagley  393 

Spalding  v.  Archibald  38 


Spalding  v.  Conzelman  160 

V.  Hall  220,  233 
Spalding  Hotel  Co.  v.  Emerson      384 

Sparkes  v.  Smith  458 

Sparkman  v.  Gove  463 

Spaulding  v.  Hallenbeck  318 

V.  M'Osker  503 

Spear  v.  Fuller               ^465,  482,  487 

v.  Orendorf  336 

Spears  v.  McKay  563 

V.  Robinson  31 

Speers  v.  Flack  555 

Spellman  v.   Bannigan  592,  593 

Spencer's  Case        328,  329,  335,  377 

Spencer  v.  Burton  367 

v.  Commercial  Co. 

468,  556,  561,  718 

V.  Hamilton  672 

V.  Lewis  570,  571 

V.  World's  Columbian  Expo- 
sition 50 
Sperry  v.  Pond  114 

V.  Sperry  485 

Spicer  v.  Spicer  656 

Spies  v.  Voss  216,  548 

Spillman  v.  Brown  63,  110 

Spooner  v.  French  519 

Sprague  v.  Quinn  270 

Springer  v.  Chicago  &c.  Co.  465,  495 

V.  De  Wolf  462,  463 
Springs  v.  Schenck               474a,  699 

Spruill  v.  Arrington  671 

Squires  v.  Huff  197 

Stabler  v.  Cowman  320 

Stack  V.  Harris  587 

Stackberger  v.  Mosteller  153 

Stacy  V.  Bostwick  695,  696 

V.  Vermont  Central  R.  Co. 

2,  654,  655 

Stadden  v.  Hazzard  26 

Stafford  v.  Ingersol  562 

V.  Staunton  132 

Stagg  V.  Eureka  &c.  Co.  699 

Stamper  v.  Sunderland  23 

Stamps  V.  Cooley  492 
Stanford  Land  Co.  v.  Steidle         255 

Staniforth  v.  Fox  142 
Stanley  v.  Hotel  Corporation 

121,  123,  141 

V.  Turner  661 

Stansbury  v.  Fringer  387 

Staple  V.  Spring  603 

Staples  V.  Emery  573 

Starbird  v.  Cranston  462 

Stark  V.  Miller  641 

Starkey  v.  Horton  348 

Starr  v.  Jackson  626,  627 

State  V.  Austin  46,  56 

v.  Boyce  608,  692 

V.  Burr  566 

V.  Burwell  46,  50 


Ixxviii 


TABLE    OF    CASES. 


[References  are  to  Sections.^ 


State  V.  Curtis 
V.  Fort 
V.  Howell 
V.  Jackson 
V.  McBride 
V.  McClay 
V.  Martin 
V.  Massey 
V.  Moore 
V.  Page 
V.  Smith 
V.  Surles 
V.  Votaw 
V.  Whitener 


20,  21 

201 

709 

626 

648 

549 

328,  444,  455,  456 

610 

566 

6,  59,  69 

21 

56 

700 

634 


Stater  v.  Kimbro  340 

Stearns  v.  Godfrey  115,  327 

V.  Sampson  228,  558,  559 

Stebbins  v.  Peck  61 

Stedman  v.  Gassett  656 

V.  Mcintosh  251 

Steed  V.  Cragh  88 

V.  Hinson  658 

Steele    v.    Anheuser-Busch    &c. 

Asso.  199 

V.  Bond  387 

V.  Frick  47 

V.  Steele  19 

Steen  v.  Scheel  555 

Stees  V.  Kranz  384 

Steese  v.  Johnson  272 

Steffens  v.  Earl  215,  253,  261 

Stein  V.  Jones  453 

Steinfleld  v.  Wilcox  143 

Steinhardt  v.  Buel  137a 

Steinhauser  v.  Kuhn  257,  476 

Steketee  v.  Pratt  197 

Stephani  v.  Catholic  Bishop         415 

Stephens  v.  Brown  255,  474a 

V.  Ely  718 

Stephenson  v.  Osborne  87 

Sterling  v.  Warden  228,  559 

Stern  v.  Thayer  539 

Sterrett  v.  Wright  655 

Stetson  V.  Briggs  83,  447 

V.  Day                 625,  626,  637,  639 

Steubben  v.  Granger  132 

Stevens  v.  Andrews  655 

V.  Dewing  58 

V.  Haskell  132 

V.  Hulin  222,  227 

V.  Pantlind  115 

V.  Pierce  575,  576 

V.  Rose  625,  626,  630 

Stevenson  v.  Hancock  428 

V.  Lambard  460,  669 

Steward  v.  Winters  382,  383,  384 

Stewart  v.  Apel  74 

V.  Doughty  47,  53 

V.  Keener  699 

V.  Lanier  House  Co.  672,  673 

V.  Long  Island  R.  Co.        446,  455 


Stewart  v.  Mumford 

V.  Murrell 

V.  Perkins 

V.  Pier 

V.  Putnam 

V.  Smiley 

V.  Sprague 
Stickney  v.  Burke 

V.  Stickney 
Stier  V.  Surget 
Stillman  v.  Harvey 
Stimmel  v.  Waters 
Stinson  v.  Dousman 

V.  Hardy 
Stobie  V.  Dills 
Stockdale  v.  Dunlop 
Stockett  V.  Howard 

v.  Watkins 
Stockwell  V.  Hunter 

V.  Marks 
Stoddard  v.  Waters 

V.  Whiting 
Stoddert  v.  Newman 


538 

253,  279 

669 

114,  388 

600 

93,  422 

448,  549 

302 

54 

661 

439 

452 

34 

36,  37 

81,  539,  543 

157 

377 

26 

102,  677 

255 

66 

74 

654 


Stoetzele  v.  Swearingen  600 

Stoker  v.  Wilson  140 

Stokes  V.  Cooper  365 

V.  McKibbin  697 

Stoltz  V.  Kretschmar  641 

Stone,  Succession  of  447 

Stone  V.  Clark  99 

V.  Lahey  558 

V.  Patterson  670 

V.  Proctor  573 

V.  St.  Louis  Stamping  Co. 

340,  342 

V.  Wood  81 

Stoops  V.  Devlin  201 

Stoppelkamp  v.  Mangeot  216 

Storch  V.  Carr  653 

V.  Harvey  341 

Stose  V.  Heissler  346 

Stott  V.  Rutherford  321 

Stoudemeier  v.  Williamson  93 

Stoughton,  Appeal  of  89 

Stout  V.  Folger  463 

v.  Merrill  703 

Stover  V.  Hazelbaker  497 

Strain  v.  Gardner  52 
Stratford  Turf  Asso.  v.  Fitch       123 

Strauss  v.  Hamersley  616 
Street  v.  Chicago  Wharfing  &c. 

Co.  67 

V.  Nelson  635 

Streeter  v.  Ilsley  700 

V.  Streeter  349 
Strickland  v.  Stiles                      7,  84 

Strohlburg  v.  Jones  642 

Strohmaier  v.  Zeppenfeld  346 

Strohmeyer  v.  Zeppenfeld  324 
Strong  V.  Garfield              3,  437,  655 

Strousse  v.  Bank  339 


TABLE    OF    CASKS. 


Iyyiy 


Stubbings  v.  Evanston 
Stubbs  V.  Parsons 
Stultz  V.  Dickey 
V.  Fleming 
V.  Locke 

Stuyvesant  v.  Davis  495,  497,  498 

V.  Mayor  &c.  332,  334,  372 

Style  V.  Hearing  349 

Suchaneck  v.  Smith  519 

Suddarth  v.  Robertson  702 

Suffern  v.  Townsend  488 

Sullivan  v.  Carberry  555,  716 

V.  Gary  251 

V.  Enders  198 

V.  O'Hara  639 

Sully  V.  Schmitt  354,  355,  360 

Sumner  v.  Williams  350 

Sunasack  v.  Morey  581,  583 

Sunday    Lake    Mining    Co.    v. 

Wakefield  491 
Sutherland  v.  Goodnow 

337,  347,  431,  471 

Sutliff  V.  Atwood  447,  449 

Sutphin  V.  Seebas  681 

Sutton  V.  Casselleggi  695 

V.  Head  382 

V.  Hiram  Lodge  116 

V.  Mandeville  650 

V.  Temple           574,  576,  578,  579 

Suydam  v.  Jackson  681 

Swank  v.  St.  Paul  City  R.  Co.      347 

Swan  V.  Clark  236 

Swanner  v.  Swanner  14 

Swatman  v.  Ambler  75 

Sweeney  v.  Garrett  504 

Sweet  v.  Myers  716 

V.  Cutts  624 

V.  Patrick  370 

Swift  V.  Dean  702 

V.  Gage  699 

V.  Heath  544 

V.  Moseley  10 

V.  New  Durham  Lumber  Co.  1,  3 

Switzer  v.  Allen  376 

V.  Gardner  542 

Swope  V.  Hopkins  195 

Swords  V.  Edgar  603,  605,  607 

Swyft  V.  Eyres  110 

Sykes  v.  Benton  84 

Sylvester  v.  Ralston  90 

Syme  v.  Sanders  682 

Symonds  v.  Hall  52,  53 

Szathmary  v.  Adams  601 


Taft  V.  Brewster  81 

Taggard  v.  Roosevelt  152 

Tainter  v.  Cole  86 

V.  Lombard  158 

Tait  V.  Central  &c.  Asylum  708 


IReferences  are  to  Sections.l 

362,  680 

413 

569 

433 
397,  629 


Talamo  v.  Spitzmiller 

197 

Talbot  V.  Cruger 

718 

v.  Hill 

570 

V.  Whipple 

538, 

716, 

727 

Talbott  V.  English 

64, 

355, 

356 

Tallman  v.  Bresler 

458 

V.  Coffin 

329, 

377 

V.  Murphy 

356 

Tantlinger  v.  Sullivan 

289, 

568 

Tanton  v.  Van  Alstine 

195 

Tarlotting  v.  Bokern 

299 

Tarpy  v.  Blume 

363 

V.  Blackburne 

711, 

728 

V.  Crowson 

486, 

496, 

503 

V.  Field 

634 

V.  McClure 

655 

V.  McCormick 

456 

Tatem  v.  Chaplin 

331, 

385 

Tatum  V.  Thompson 

679 

Taunton  v.  Costar 

558 

Tavener's  Case 

669 

Taylor  v.  Bradley 

54, 

140, 

616 

V.  Cole 

444 

V.  Coney 

55 

,  56 

V.  Cooper 

369, 

370 

V.  DeBus            447, 

450, 

456, 

462 

V.  Frohock 

114 

V.  Hart 

393, 

675, 

678 

V.  King 

125 

V.  Koshetz 

384 

V.  Lehman            64, 

410, 

672, 

673 

V.  Levy 

121 

V.  Moffatt 

431 

V.  O'Brien 

225 

V.  Shum 

456, 

458 

V.  Soldati 

135 

V.  Sweet 

125 

V.  Syme 

394 

V.  Taylor 

35, 

171 

V.  Tuson 

258 

V.  Winters 

213 

Tays  V.  Ecker 

394 

Teft  V.  Hinchman 

256 

Ten  Eyck  v.  Rector  &c.  415 

V.  Sleeper  135 

Terrell  v.  Cunningham  657 

Terstegge  v.  First  German  &c. 

Soc.  340 

Tew  V.  Jones  227,  257,  654 

Tewksbury  v.  Magraff  698 

Texas  &c.  Co.  v.  Lawson  326 

Texas  &c.  R.  Co.  v.  Bayliss      52,  645 

V.  Mangum  579 

v.  Settegast  497 

Texas  Land  Co.  v.  Williams  692 

Texas  Loan  Agency  v.  Heming    599 

Thayer  v.  Luce  158,  437 

V.  Society  &c.  697,  702 

V.  Waples  474a 

Theobalds  v.  Duffoy  111 

Thiebaud  v.  First  Nat.  Bank       339 


Ixxx 


TABLE    OF    CASES. 


[References  are  to  Sections.l 


Thomas  v.  Cook 

543 

V.  Cront 

711 

V.  Bering 

138 

V.  Frost 

555 

V.  Hatch 

61 

V.  Nelson 

180, 

548 

V.  Pemberton 

461 

V.  Pickering 

657 

V.  Sanford  &c.  Co. 

548 

V.  Vonkapff 

335 

V.  Walmer 

504 

V.  Wiggers 

104 

V.  Wright 

197, 

251 

V.  Zumbalen 

542 

Thomasson  v.  Wilson 

494 

Thompson  v.  Bower 

651 

V.  Clemens 

592 

V.  Cummings 

631 

V.  Fischesser 

413 

V.  Gray 

438 

V.  Gregory 

45 

V.  Lawley 

171 

V.  Leach 

79 

V.  Marsh 

554 

V.  Mawhinney 

48 

V.  Pendell 

675, 

679 

V.  Phenix  Ins.  Co. 

443 

V.  Pioche 

707 

V.  Rose 

329, 

377 

V.  Shattuck 

410 

Thompson  &c.  R.  Co.  v.  Young     725 
Thomson-Houston  &c.  Co.  v.  Du- 

rant  &c.  Co.  410 

Thorndike  v.  Burrage  397,  555 

V.  Norris  699,  700 

Thornston  v.  Payne  141,  142 

Thornton  v.  Dixon  86 

V.  Strauss  31,  35 

Thorp  V.  Bradley  159 

Thrall  v.  Omaha  Hotel  Co.           689 
Thresher  v.  East  London  &c.  Co.  713 

Throop  V.  Broadus  371 

Thropp  V.  Field  104,  496 

Thruston  v.  Minke  323 

Thum  V.  Rhodes  574,  576 

Thunder  v.  Belcher  25,  180 

Thurber  v.  Dwyer  199,  251 

Thursby  v.  Plant  447 

Tibbals  v.   Iffland  456 

Tibbits  V.   Percy  324 

Tibeau  v.  Tibeau  541 
Tiefenbrun  v.  Tiefenbrun     242,  440 

Tignor  v.  Bradley  661 

V.  Toney  52,  53 

Tiley  v.  Moyers  354,  358 

Tilford  V.  Fleming  421,  426 

Tilghman  v.  Little  703 

Tilleny  v.  Knoblauch  337 

Tillman  v.  Fuller  141,  152 

Tillotson  V.  Boyd  462 


Tillotson  V.  Doe  474a 

Times  Co.  v.  Seibrecht  496 

Timmins  v.  Rowlinson  192,  564 

Tinder  v.  Davis  654 

Tinney  v.  Ashley  323 

Tinsley  v.  Craige  49 

V.  Tinsley  2 

Tipping  V.  Robbins  86 

Toan  V.  Pline  181 

Tobey  v.  County  of  Bristol  346 

Tobin  V.  Young  257,  474a 

Todd  V.  Flight                599,  603,  605 

V.  Hall  495 

Toler  V.  Seabrook  656 

V.  Slater  87 

Tolle  V.  Orth                     201,  206,  209 

Tomkins  v.  Lawrence  195,  219 

Tomle  V.  Hampton  607 

Tompkins  v.  Staiger  3 

Toms  V.  Williams  111 

Tone  V.  Brace  351 

Toner  v.  Meussdorffer  580 

Tooker  v.  Grotenkemper  350 

Toole  V.  Beckett  612 

Topping  V.  Parish  163 

V.  Sadler  88 

Torrent  v.  Muskegon  &c.  Co.        565 

Torrey  v.  Burnett  716 

V.  Walles  411 

Torriano  v.  Young  625,  627 

Toun  V.  Armstrong  598 

Toupin  V.  Peabody  71,  167 

Towell  V.  Etter  558 

Towery  v.  Henderson  686 

Towey  v.  Wallis  328 

Town  V.  Armstrong  594 

Towne  v.  Bowers  570 

V.  Butterfield       30,  555,  685,  696 

V.  Thompson      576,  579,  583,  585 

Townley  v.  Bedwell  387 

Townsend  v.  Albers  548 

V.  Gilsey  360 

V.  Hubbard  320 

V.  Isenberger  53,  645 

V.  Scholey  462 

V.  Sharp  160 

Townshend  v.  Stangroom  412 

Townson  v.  Tickell  456 

Trabue  v.  McAdams  456,  458 

Tracy  v.  Albany  Exc.  Co.  343,  369 

Tradesman    Pub.    Co.   v.   Knox- 

ville  &c.  Co.  444 

Trainer  v.  Trumbull  96 

Trammell  v.  Chambers  111 

V.  Trammell  45 

Trapnall  v.  Merrick  80,  650 

Trask  v.  Graham  328,  455 

V.  Wheeler  494,  495 

Trathen  v.  Kipp  672 

Traynor  v.  Johnson  497 


TABLE   OF   CASES. 


Ixxxi 


iReferenees  are  to  Sections.'] 


Treadway  v.  Sharon  711 

Treadwell  v.  Bulkley  79 

Tredt  v.  Wheeler  581 

Tresham  v.  Lamb  631 

Tress  v.  Savage  256 

Trevivan  v.  Lawrence  84 

Tribble  v.  Frame  558 

Trimble  v.  Ward  101 

Triscony  v.  Orr  10 

Tritton  v.  Frote  343 

Trobock  v.  Caro  122 

Troewert  v.  Decker  61 

Trout  V.  Perclful  388 

Trowbridge  v.  Wetherbee  131 

Trower  v.  Wehner  612 

Troxell  v.  Wheatley  439 

Troy  &c,  R.  Co.  v.  Kerr  9 

Trubee  v.  Miller  653 

Trull  V.  Granger           143,  367a,  369 

Truss  V.  Old  635 

Trust  Co.  V.  Palmer  357 

Trustees  v.  Jennings  474a,  479 

V.  Spencer  80 

Trustees  &c.  v.  Burt  686 

V.  Cowen  331 

V.  Dunn  690 

V.  Meetze                  257,  474a,  479 

V.  Streeter  446 

Tryon  v.  Davis  88 

Tscheider  v.  Biddle  346 

Tubb  V.  Fort  658 

Tucker  v.  Adams  1,  29 

V.  Byers  3 

V.  Whitehead  707 

Tufts  V.  DuBignon  702 

Tully  V.  Dunn  549,  661 

Tumbridge  v.  Read  98 

Tunis  V.  Grandy  354,  365,  669 

Turley  &c.  Inst.  v.  Memphis  412 

Turner  v.  Bachelder  53 

V.  Johnson  431 

V.  Revere  Water  Co.  414 

V.  Richardson  461 

V.  Townsend  404,  588,  590 

Tuttle  v.  G.  H.  Gilbert  Mfg.  Co. 

579,  592 

V.  Harry  58 

v.  Lane  223 

V.  Langley  180,  194,  568 

V.  Reynolds  257,  682 

Twiss  V.  Baldwin  361 

V.  Boehmer  1 

Twycross  v.  Fitchburg  R.  Co.        415 

Twyman  v.  Hawley  183,  314 

Tyler  v.  Davis  697 

V.  Disbrow  583 

V.  Giesler  456 

V.  Heidorn  58,  649 

V.  Williamson  109 

Tyson  v.  Chestnut  363,  369 

Jones  L.  &  T. — vi 


U 


Uhl  V.  Pence  30 

Uhlig  V.  Garrison  691 

Uhrig  V.  Williamsburg  City  Fire 

Ins.  Co.  346 

Ullman  v.  Herzberg  564 

Underbill  v.  Collins  543,  549,  550 
Underwood  v.  Ainsworth  87 

V.  Birchard  361,  366 

Unger  v.  Bamberger  238,  340 

Unglish  V.  Marvin  50 

Union  &c.  Ins.  Co.  v.  Tillery  713,  715 
Union  Bank  v.  Kansas  City  Bank  443 
Union  Banking  Co.  v.  Gittings 

149,  153 
Union  Brewing  Co.  v.  Meier  87 

Union  Depot  Co.  v.  Chicago  &c. 

R.  Co.  40 

Union  Water  Power  Co.  v.  Pin- 

gree  679 

United  Order  &c.  v.  Fitzgerald  128 
United  States  v.  Appleton  107 

V.  Bostwick  628,  631 

v.  Gratiot  112 

V.  Parrott  638 

United  States  Trust  Co.  v.  Wa- 
bash &c.  R.  Co.  9,  443 
University  of  Vermont  v.  Joslyn  458 
UpdegrafE  v.  Lesem         716,  725,  727 
Updike  V.  Campbell                121,  123 
Upper  Appomattox  Co.  v.  Hamil- 
ton 59 
Upton  V.  Greenlees                          365 
V.  Townend                          354,  365 
Uridias  v.  Morrell                            228 
Usher  v.  Moss                                    555 
Utah  L.  &  T.  Co.  v.  Garbutt 

93,  159,  216,  253 
Utah  Optical  Co.  v.  Keith 

148,  474,  677 


Vai  V.  Weld                              404,  612 

Vale  V.  Trader                        675,  678 

Valentine  v.  Healey  86 

Valle  V.  Fargo  417 

Van  V.  Rouse  681 

Van  Alstyne  v.  Van  Slyck  320 

Vanatta  v.  Brewer  487 

Van  Bergen  v.  Van  Bergen  642 

Van  Beuren  v.  Wotherspoon  375 
Van  Blarcom  v.  Kip                       474a 

Vanbuskirk  v.  McNaughton  121 

Van  Campden  v.  Depue  303 

Vance  v.  Johnson  25 

Van  Cortlandt  v.  Underbill  379 
Vandegrift  v.  Abbott 

93,  130,  672,  673 


Ixxxii 


TABLE    OF    CASES. 


[References  are  to  Sections.} 


Vandenheuvel  v.  Storrs  29 

Vanderford  v.  Foreman  204 

Vanderkarr  v.  Vanderkarr  350 

Van  Doren  v.  Everitt  569 

Van  Driel  v.  Rosierz  424 

Van  Hoozier  v.  Hannibal  &c.  R. 

Co.  645 

Van  Home  v.  Grain  460 

Van  Ness  v.  Pacard 

712,  713,  716,  725,  727 

Van  Rensselaer  v.  Ball  649 

V.  Bonesteel  455 

V.  Bradley  460,  669 

V.  Dennison  525 

V.  Gallup  669 

V.  Jewett  503,  661,  666 

V.  Jones  458,  460,  666,  669 

V.  Penniman  555 

V.  Plainer  447,  666 

Van  Schaick  v.  Third  Ave.  R.  Co.    660 

Van  Studdiford  v.  Kohn  272 

Van  Wagner  v.  Van  Nostrand        422 

Van  Wicklen  v.  Paulson        648,  670 

Van  Winkle  v.  Hinckle  474a 

Van  Wormer  v.  Crane  395 

Varley  v.  Coppard  468,  469 

Varner  v.  Rice  410 

Varney  v.  Stevens  413,  637,  690 

Vason  V.  Augusta  605,  607 

Vass  V.  Wales  404 

Vaughan  v.  Matlock  319 

Vaughn  v.  Locke  422 

Veale  v.  Warner  682 

Vegely  v.  Robinson  270 

Vere  v.  Loveden  464 

Vermilya  v.  Austin  365 

Vernam  v.  Smith  351 

Vernon  v.  Smith  389 

Verplanck  v.  Wright  326,  329 

Vick  V.  Ayres  34 

Vicksburg  &c.  R.  Co.  v.  Ragsdale    496 

Victory  v.  Stroud  11 

Vincent  v.  Buhler  87 

V.  Corbin  257,  305,  474a 

V.  Defield  367 

V.  Spicer  632 

Vinson  v.  Flynn  558,  682. 

Vinz  V.  Beatty  61 

Virden  v.  Ellsworth  333 

Virginia    Min.    &    Imp.    Co.    v. 

Hoover  12 

Vivian  v.  Champion  410 

V.  Moat  474a 

Voege  V.  Ronalds  154,  340 

Voiht  V.  Resor  12 

Voltz  V.  Harris  662 

Vorrath  v.  Burke  594 

Verse  V.  Des  Moines  &c.  Co.  420,  555 
Voss  V.  King  201,  202,  695,  701 

Vrooman  v.  McKaig  202 

Vyse  V.  Wakefield  409 


W 


Wacholz  V.  Griesgraber  368 

Waddell  v.  Defet  395,  397 

Wade  V.  Baker  89 

V.  Halligan  349 

Wadley  v.  Williams  50 

Wadman  v.  Calcraft  491 

Wafer  v.  Mocato  492 
Wakefield  v.  Sunday  Lake  Min. 

Co.  502 

Wakeman  v.  Johnson  524 

Waggener  v.  McLaughlin  690 

Wahl  V.  Barroll      330,  428,  429,  463 

Wainscott  v.  Silvers  393 

Wait,  Ex  parte  650 

Waite  V.  O'Neil  392 

V.  Teeters  432 

Walden  v.  Bodley  474a 

V.  Conn  432,  642,  644 

Waldo  V.  Hall  352,  435 

Walker's  Case  658 

Walker  v.  Clifford  644 

V.  Ellis  255 

V.  Engler  495,  497 

V.  Fitts  48,  51 

V.  Forbush.  548 

V.  Gilbert  409,  612 

V.  Harper  682 

V.  Harrison  413 

V.  Hatton  397 

V.  Moore  140 

V.  Physick  322,  463 

V.  Reeves  458 

V.  Shakelford  199 

V.  Sharpe  273 

V.  Tucker  631 

V.  Walker  642 

V.  Whittemoi-e  415 

Wall  V.  Goodenough  474a 

V.  Hinds  416,  447,  713 

V.  Hinson  163 

Wallace  v.  Bahlhorn  348 

V.  Kennelly  543 

V.  Lent  128,  583 

V.  Rippon  87 

V.  Scoggins  159,  160 

Waller  v.  Deane  75 

V.  Morgan  20,  432 

V.  Vermitt  289 

Wallis  V.  Harrison  44 

Walls  V.  Atcheson  540 

V.  Preston  47,  52,  53,  209 

Walsh  V.  Martin  336,  436,  442 

V.  Packard  333 

V.  Watson  331 

Walter  v.  Maunde  668 

Walters  v.  Hutchins  635 

v.  Meyer  29 

Walton  V.  Cronly  458 

V.  File  558 


TABLE   OF   CASES. 


Ixxxiii 


[References  are  to  Sections.1 


Walton  V.  Stafford 
V.  Waterhouse 
Wampler  v.  Weinmann 
Wamsganz  v.  Wolff 


661 
392 
679 
254 


Waples  V.  City  of  New  Orleans 

258,  292 

Ward  V.  Bull  654,  676 

V.  Dewey  565 

V.  Fagin  586,  613 

V.  Hasbrouck  152,  154 

V.  Lumley  541 

V.  Neal  381 

V.  Robertson  132 

V.  Sheppard  636 

V.  Small  18 

V.  Ward  88 

V.  Warner  2 

Warden  v.  Etter  254 

Warder  v.  Henry  631 

Ware  v.  Grand  Junction  &c.  Co.        9 

Waring  v.  King  207,  554,  555 

Warner  v.  Abbey  46,  50,  53 

V.  Hale  152,  159,  217 

V.  Hitchins  393 

V.  Hoisington  51 

V.  Tanner  111,  114,  171 

Warnock  v.  Harlow  654 

Warren  v.  Ferdinand  652 

V.  Leland  74,  439 

V.  Lyons  221 

V.  Wagner  354,  365,  675,  677 

Warren  &c.  Mfg.  Co.  v.  Holbrook  154 

Warren  Co.  v.  Gans  635 

Washburn,  In  re  461 

Washburn  v.  Burns  88 

Washington  v.  Conrad   682,  697,  699 

Washington  Bank  v.  Brown  653 

Washington  Gas  Co.  v.  Johnson    411 

Waterhouse  v.  Schlitz  Brew.  Co.  609 

Waterman  v.  Harkness  417 

V.  Johnson  99 

Waters  v.  Roberts  266 

V.  Williamson  261 

V.  Young  261 

Watertown  v.  White  9 

Watkins  v.  Goodall  614 

Watriss  v.  First  Nat.  Bank  718 

Watrous  v.  Allen  382 

Watson  V.  Alexander  705 

V.  Brainard  3 

V.  Fletcher  497 

V.  Gardner  377 

V.  Harrigan  641,  644 

V.  Hunkins  430 

V.  Janion  137 

V.  O'Hern  59 

V.  Pugh  31 

Watson  &c.  Co.  v.  Casteel  455 

Wattles  V.  South  Omaha  &c.  Co. 

392,  678 
Watts  V.  Coffin  324 


Way  V.  Holtan  659 

V.  Reed  448,  453 

Weathersby  v.  Sleeper  725 

Weatherly  v.  Baker  431 

Weaver  v.  Coumbe  71 

V.  Shipley  98,  99 

V.  Southern  Oreg.  Co.  5 

V.  Wood  59,  137a 

Webb  V.  Plummer  321 

V.  Russell  328,  428,  429,  659 

V.  Seekins  174 

Webber  v.  Shearman  202 

Webster  v.  Blodgett  160 

V.  Nichols  465 

Weddall  v.  Capes  160 

Weed  V.  Crocker  5,  143 

V.  Lindsay  141,  146,  285 

Weeks  v.  Sly  272,  276 

Weeton  v.  Woodstock  716,  721 

Weichselbaum  v.  Curlett      412,  690 

Weigall  V.  Waters   392,  404,  591,  592 

Weil  V.  Kahn  133 

Weinsteine  v.  Harrison         404,  588 

Welch  V.  Myers  461 

V.  Winterburn  146 

Welcome  v.  Hess  538,  539,  550 

Weld  V.  Traip  143 

Welden  v.  Schlosser  563 

Weldon  v.  Lytle  89,  90 

Weller  v.  McCormick  600 

Welles  V.  Castles  394 

Wells  V.  Cowles  658 

V.  De  Leyer  346 

V.  Mason  321,  349 

V.  Porter  413 

V.  Sheerer  474a 

Welsh  V.  Schuyler  440,  442 

Welshbillig  v.  Dienhart  133 

Welz  V.  Rhodius  130,  382 

Wentworth  v.  Portsmouth  &c.  R. 

50,  640 
Wenzlick  v.  McCotten  604 

Wertheimer  v.  Circuit  Judge 

331,  471,  472 
V.  Hosmer  331 

V.  Saunders  596,  597 

West  V.  Blakeway  392 

V.  Cartledge  652 

V.  Emmons  323 

V.  Treude  626 

West  Chicago  &c.  Works  v.  Sheer  666 
West  Chicago  St.  R.  Co.  v.  Mor- 
rison &c.  Co.  59,  137 
West  London  R.  Co.  v.  London 

&c.  R.  Co.  9 

West  River  Bridge  Co.  v.  Dix       708 
West  Shore  Mills  Co.  v.  Edwards 

422,  703 

West  Side  &c.  Co.  v,  Connecticut 
&c.  Ins.  Co.  82 


Ixxxiv 


TABLE   OF   CASES. 


IBeferences  are 

West  Virginia  &c.  R.  Co.  v.  Mc- 

Intire  411,  455 

Western  &c.  R.  Co.  v.  Cox  604 

V.  Gannon  141,  143,  144 

V.  State  412 

Western  Bank  v.  Kyle  495 

Western   North  Carolina  R.  v. 

Deal  727 
Western  Transp.  Co.  v.  Lansing 

112,  343 

Westervelt  v.  Ackley  87 

Westlake  v.  De  Graw  673 

Westmoreland  &c.  Co.  V.  De  Witt  63 

Weston  V.  Gravlin  640 

Westropp  V.  Blligott  631 

Wetherbee  v.  Ellison  573 

Wetzell  V.  Richcreek  435 

Whalen  v.  Leisy  &c.  Co.  121 

Whaley  v.  Whaley  13 

Whalin  v.  White  703 

Wharton  v.  Anderson  136 

V.  Stoutenburgh  138 

Wheat  V.  Brown  201 

V.  Watson  547,  656 

Wheeler  v.  Baker  136 

V.  Bramah  461 

V.  Cowan  131,  202,  239 

V.  Dascomb  326,  327 

V.  Earle  331,  386,  489 

V.  Frankenthal  152,  217 

V.  Hill  374,  431,  446 

V.  Montefiore  15 

V.  Walden  540 

V.  Wood  254 

Wheeler   &c.   Mfg.   Co.   v.   Has- 

brouck  726 

Wheelock  v.  Tuttle  413 

V.  Warschauer  706 

Whetstone  v.  Davis  255 

V.  McCartney  447 

Whicher  v.  Cottrell  258 

Whipley  v.  Dewey  716 

Whipple  V.  Earick  695 

V.  Shewalter  99,  262 

Whitaker  v.  Allday  657 

V.  Cawthorne  37 

V.  Hawley               .  676,  678 

Whitbeck  v.  Cook  354 

V.  Skinner  673 

Whitcomb  v.  Starkey  457 

White  V.  Albany  Ry.  397 

V.  Arndt  716 

V.  Cannon  91 

V.  Foster  38 

V.  Gillman  324 

V.  Griffing  461 

V.  Holland  152 

V.  Kane  382,  383,  424 

V.  Levy  152 

V.  Livingston  31 

V.  Maynard  23,  24 


to  Sections.l 

White  V.  Montgomery 

587, 

616 

V.  Naerup 

383 

V.  Stuart 

675 

V.  Wagner 

625, 

626 

V.  Walker                  453, 

662, 

666 

V.  Wieland 

159 

Whitehead  v.  Clifford 

540 

Whitfield  V.  Bewit 

637 

Whiting  V.  Edmunds 

481 

V.  Mass.  &c.  Ins.  Co. 

156 

V.  Ohlert 

152 

Whitlock  V.  Duffield 

343 

Whitmarsh  v.  Cutting 

569 

Whitmore  v.  Orono  Pulp  &  Pa- 
per Co.  579,  585 
Whitney  v.  Allaire  126 
V.  Cliiford  22 
v.  Olney  107 
V.  Salter  689 
V.  Swett  156,  180,  302 
Whittaker  v.  Collins  630 
Whittemore  v.  Gibbs  190,  446 
V.  Moore  202 
Whittle  V.  Webster  587 
Whitton  V.  Smith  541 
Whitwell  V.  Harris  380 
Wickham  v.  Freeman  627 
Wickson  v.  Monarch  &c.  Mfg  Co.  152 
Wiggin  V.  Wiggin  702 
V.  Keizer  382 
Wiggins  Ferry  Co.  v.  Ohio  &c. 

R.  Co.  712 

Wigglesworth  v.  Dallison  569 

Wilhelm  v.  Mertz  71 

Wilber  v.  Follansbee  597 

v.  Paine  159,  160 

Wilborn  v.  Whitfield  691 

Wilbur  v.  Collin  85 

V.  Nichols  428 

Wilcher  v.  Robertson  2,  3 

Wilcox  V.  Gate  628 

V.  Hines  576 

V.  Montour  &c.  Co.  210,  342 

V.  Zane  617,  620 

Wilczinski  v.  Lick  31 

Wild  V.  Serpen  688 

Wilde  V.  Cantillon  203,  228 

V.  Fox  160 

Wildy  V.  Doe  682 

Wiley,  Estate  of  160,  441 

Wiley  V.  Christ  541 

.     V.  Inhabitants  &c.  324 

Wilgus  V.  Lewis  212,  214,  564 

V.  Whitehead  132,  136,  310 

Wilkerson  v.  Farnham  373 

Wilkins  v.  Pensacola  City  Co.      695 

Wilkinson  v.  Clauson  580,  674 

V.  Colley  564 

V.  Hall  650 

V.  Libbey  417 

V.  Roves  34 


TABLE   OF   CASES. 


Ixxxv 


[References  are  to  Sections.l 


Wilkinson  v.  Wilkinson 
Willard  v.  Harvey 
Williams  v.  Ackerman 

V.  Bacon 

V.  Bartholomew 

V.  Bigelow 

V.  Bosanquet 

V.  Brummel 

V.  Burrell 

V.  Canal  Co. 

V.  Chicago  Exhibition  Co. 

V.  Cleaver 

V.  Deriar 

V.  Downing 

V.  Frybarger 

V.  Garrison 

V.  Haywood 

V.  Hollis 

V.  Jones 

V.  Kearny  Co. 

V.  Kent 

V.  Kinsman 

V.  Lane 

V.  Mershon 

V.  Robinson 

V.  Rogers 

V.  Sherman 

V.  Vanderbilt 

378,  496,  503,  513,  543 

V.  Wait  702 

V.  Woodard  116,  442 

Williamson  v.  Crossett 

V.  Jones 

V.  Miller 

V.  Yingling 
Willard  v.  Benton 

V.  Earley 

v.  Tillman 

V.  Warren 
Willerton  v.  Shoemaker 
Willi  V.  Dryden 


6 

94 

180,  251 

158,  437 

198 

19,  563 

458 

268 

369 

642 

638 

47,  49,  59 

197,  256 

163 

427 

689 

430 

2 

540 

628 

414 

374 

718 

157 

437 

50 

651 


550 

637 

408 

37 

503,  533 

474a,  475 

365,  430,  658 

557 

255 

458,  462 

Willis  V.  Astor  343 

V.  Branch  504 

Willison  V.  Watkins 

85,  474a,  479,  657,  682,  688,  696 
Willoughby  v.  Atkinson  &c.  Co. 

293,  337 

V.  Lawrence  465,  495 

Wills  V.  Manufacturers'  &c.  Co.    495 

V.  Summers  411,  420,  455 

Willson  V.  Phillips  326 

V.  Treadwell  579 

Willmath  v.  Pratt  53 

V.  Palmer  2 

Wilmer  v.  Farris  160 

Wilmington  &c.  Co.  v.  Allen  486 

Wilmington  Water-Power  Co.  v. 

Evans  37 

Wilson  V.  Cleaveland  688 

V.  Edmonds  404,  637 

V.  Finch  577,  578 


Wilson  V.  Gerhardt  447 

V.  Hunter  102 

V.  James  687 

V.  Lunt  462 

V.  Martin  23 

V.  Merrill  225 

V.  Prescott  293,  555 

V.  Roots  69 

V.  Scruggs  373 

V.  Stewart  56 

V.  Taylor  216 

V.  Trustees  of  No.  16  651 

V.  Weathersby  682 

V.  Wilson  471 

V.  Youst  89 

Winch  V.  Birkenhead  &c.  R.  Co.        9 

Winchester  v.  Hess  102 

V.  Howard  158 

Windon  v.  Stewart  89,  90,  631 

Wineman  v.  Hughson  658 

V.  Phillips  447,  448 

Winfrey  v.  Work  428 

Wing  v.  Gray  573 

Winkler  v.  Gibson  465 

V.  Massengill  562 

Winn  v.  State  326,  558 

v.  Strickland  682,  703,  709 

Winnard  v.  Robbins  682 

Winship  v.  Pitts  633,  638 

Winslow  V.  Merchants'  Ins.  Co.    710 

Winstell  v.  Hehl  88 

Winston  v.  President  &c.        659,  682 

Winter  v.  Stevens  558 

Winterbottom  v.  Ingham  654 

Winters  v.  Cherry  242 

Winton  v.  Cornish  102,  474,  677 

Wirt  V.  Philips  502 

Wise  V.  Falkner  658 

V.  Ressler  666 

Withers  v.  Atkinson  62 

V.  Larrabee  239,  254,  548 

Withnell  v.  Petzold  242 

Witthaus  v.  Starin  83 

Witman  v.  Reading  74,  83 

V.  Watry  549 

Witte  V.  Quinn  104,  356,  359 

V.  Witte  299 

Wittman  v.  Milwaukee  &c.  R.  Co.  442 

Witty  v.  Matthews  404,  588,  590 

Wolcott  v.  Sullivan  409 

Wolf  v.  Dozer  152 

V.  Studebaker  140 

V.  Johnson  703 

Wolfe  V.  Arrott  125,  126,  583 

Wolff  V.  Schaeffer  127 

Wolffe  V.  Wolffe  206,  209 

Wollaston  v.  Hakewill  446 

Womack  v.  McQuarry  102,  675,  677 

Wood  V.  Bogle  418 

V.  Felton  27,  428 

V.  Garrison  291 


Ixxxvi 


TABLE   OF    CASES. 


[References  are  to  Sections.'\ 


"Wood  V.  Helme 
V.  Hubbell 
V.  Leadbitter 
V.  Manley 
V.  Partridge 
V.  Sharpless 
V.  Turner 
V.  Wilcox 


379 

675 

36,  44 

44 

439,  661,  667 

391 

704 

652,  661 


Woodbridge  v.  Richardson  390 

Woodbury  v.  Parshley  45 

V.  Woodbury  655 

Woodcock  V.  Carlson      493,  502,  519 

V.  Nuth  543 

Woodhull  V.  Rosenthal  446,  460 

Woodland  Oil  Co.  v.  Crawford      462 

Woodman  v.  Francis  640 

V.  Tufts  604 

Woodrow  V.  Michael  194,  296 

Woodruff  V.  Adams  48,  53 

V.  Baldwin  462,  463 

Woods  V.  Naumkeag  &c.  Co.  619 

Woodstock  Iron  Co.  v.  Fullen- 

wider  477 

Woodward  v.  Brown  476 

V.  Conder  49 

V.  Cone  513 

V.  Gates  626,  636 

V.  Payne  374,  377 

V.  Seely  37,  45 

Woodworth  v.  Thompson  590 

Woolley  V.  Osborne  373 

Woolveridge  v.  Steward 

449,  451,  463 

Word  V.  Drouthett  686 

Work  V.  Brayton  222 

Worrall  v.  Wilson  539 

Worthington  v.  Cooke  668 

V.  Hewes  450 

V.  Lee  437 

V.  Warrington  140 

V.  Young  373 

Wreford  v.  Kenrick  365 

Wrese  v.  Remme  597 

Wright  V.  Bischer  165 

V.  Du  Bignon  711 

V.  Everett  483 

V.  Graves  221,  694 

V.  Hardy  494 

V.  Lattin  324,  410,  673 

V.  Macdonnell  718,  719,  720 

V.  Mahoney  561 


Wright  V.  Roberts 

V.  Stavert 

V.  Tileston 

V.  Weeks 
Wunder  v.  McLean 
Wyckoff  v.  Gardner 
Wyman  v.  Dorr 

V.  Farrar 

V.  Hook 

V.  Sperbeck 
Wynn  v.  Garland 


670 

23,  24 

628,  630 

100 

605 

88 

10 

67 

3,  655 

70 

36,37 


Yale  V.  Seely  38,  558 

Yarbrough  v.  Monday  320 

Yates  V.  Backley  375 

v.  Kinney  202 

Yeakle  v.  Jacob  38 

Yeazel  v.  White  572 

Yellow  Jack  &  Co.  v.  Stevenson  181 

Yetter  v.  King  &c,  Co.  201 

York  v.  Jones  422 

V.  Steward  575,  576 

Youell  V.  Kridler  553 

Youmans  v.  Caldwell  568 

Young  V.  Burhans  355,  410,  673 

V.  Collett  353,  355 

V.  Consolidated  Imp.  Co. 

718,  719,  720 

V.  Dake  152 

V.  Downey  651 

V.  Hargrave  349 

V.  Heffernan  702 

V.  Paul  87 

V.  Smith  255 

V.  Young  293,  488 

Young  Trust  Co.  v.  Wagener         497 

Youngblood  v.  Eubank  716,  721 

Younggreen  v.  Shelton  645 


Zeller  v.  Eckert  474a 

Zeysing  v.  Welbourn  428 

Zillig,  Matter  of  154 

Zimmerman  v.  Marchland  688 

Zippar  V.  Reppy  213 

Zorkowski  v.  Astor  375 

Zouch  V.  Parsons  95 

Zule  V.  Zule  10,  667 


THE  LAW  OF  LANDLORD 
AND  TENANT. 


CHAPTER  I. 

CREATION    OF    THE    RELATION. 


1.  Essentials  of  a  Tenancy,  §§  1-8. 

2.  Subject-Matter,  §§  9-10. 

3.  Proof  of  Tenancy,  §§  11-14. 

4.  Interesse  Termini,  §§  15-17. 


5.  Similar     Contractual     Relations, 

§§  18-28. 

6.  Purchaser  in  Possession,  §§  29-36. 

7.  Lease  or  License,  §§  37-45. 

8.  Cropping  Contracts,  §§  46-56. 


I.    Essentials  of  a  Tenancy. 

§  1.     A  tenancy  is  created  by  contract  express  or  implied  whereby 
one  person  permits  another  to  occupy  lands  actually  or  constructively. 

Without  such  a  contract  there  can  be  no  relation  of  landlord  and 
tenant.^  "In  a  popular  sense  a  tenant  is  one  who  has  the  temporary 
use  and  occupation  of  lands  and  tenements  which  belong  to  another, 
the  duration  and  other  terms  of  whose  occupation  are  usually  defined 
by  an  agreement  called  a  lease,  while  the  parties  thereto  are  placed  in 
the  relation  of  landlord  and  tenant."^  Eeduced  to  its  simplest  terms, 
the  rule  has  sometimes  been  stated  to  be  that  any  permissive  occupa- 
tion of  land  in  subordination  of  another's  title  which  amounts  to  an 
exclusive  possession,  creates  the  relation  of  landlord  and  tenant  be- 
tween the  occupant  and  the  landowner. ^   But  not  only  must  a  person 


1  Rogers  v.  Coy,  164  Mass.  391,  41 
N.  E.  652;  Central  Mills  v.  Hart, 
124  Mass.  123;  Merrill  v.  Bullock, 
105  Mass.  486,  490;  Kirchgassner  v. 
Rodick,  170  Mass.  543,  49  N.  E. 
1015;  Cobb  v.  Arnold,  8  Met. 
(Mass.)  398. 


=  Bouvier's  Law  Diet.,  Rawle's  Re- 
vision. 

^  Central  Mills  v.  Hart,  124  Mass. 
123;  Baley  v.  Deakins,  5  B.  Mon. 
(Ky.)  159;  Skinner  v.  Skinner,  38 
Neb.  756,  57  N.  W.  534;  Hanks  v. 
Price,  32  Gratt.    (Va.)   107;   McLen- 


2] 


CREATIOX   OF  THE  EELATIOX. 


residing  or  working  on  the  premises  have  the  legal  possession  of  them 
to  constitute  him  a  tenant,  but  there  must  be  no  other  agreement  or 
contract  under  which  such  possession  can  be  explained.  Some  agree- 
ment between  the  parties  for  a  tenancy,  whether  it  be  made  ex- 
pressly in  words,  or  arises  from  their  acts  and  conduct  in  relation  to 
the  land  and  the  absence  of  express  agreement,  is  essential.* 

§  2.  Occupation  must  not  be  adverse. — One  of  the  first  require- 
ments in  inferring  an  agreement  for  a  tenancy  is  consent  on  the  part 
of  the  landowner  to  the  occupation  of  the  premises  in  regard  to  which 
the  alleged  tenancy  is  claimed  to  exist.  Consent  to  occupation  of 
premises  does  not  necessarily  imply  a  contract  of  tenancy,  but  the 
absence  of  consent  does  absolutely  preclude  any  inference  of  such 
an  agreement.  The  relation  of  landlord  and  tenant  does  not  arise 
where  the  occupant  of  land  holds  adversely  to  the  owner,  and  the 
occupant  in  such  a  case  is  not  liable  for  rent.^  An  entry  on  lands  of 
another  without  right  and  not  in  subordination  to  the  title  of  the 
owner  is  a  mere  trespass,  and  no  tenancy  is  created  thereby.  Neither 
the  occupant  nor  the  owner  is  entitled  to  claim  the  benefits  of  a 
tenancy,  and  neither  can  be  held  liable  for  its  obligations.®     The 


nan  v.  Grant,  8  Wash.  603,  36  Pac. 
682. 

*  Alabama:  Tucker  v.  Adams,  52 
Ala.  254.  California:  Emerson  v. 
Weeks,  58  Cal.  439;  Paige  v.  Akins, 
112  Cal.  401,  406,  44  Pac.  666.  Geor- 
gia: Littleton  v.  Wynn,  31  Ga.  583. 
Kentucky:  Moore  v.  Calvert,  6 
Bush  (Ky.)  356.  Illinois:  Hill  v. 
Coal  Valley  Min.  Co.,  103  111.  App. 
41.  Massachusetts:  Rogers  v.  Coy, 
164  Mass.  391,  41  N.  E.  652;  Cen- 
tral Mills  V.  Hart,  124  Mass.  123; 
Knowles  v.  Hull,  99  Mass.  562;  Em- 
mons V.  Scudder,  115  Mass.  367; 
Edwards  v.  Hale,  9  Allen  (Mass.) 
462.  New  Hampshire:  Swift  v.  New 
Durham  Lumber  Co.,  64  N.  H.  53. 
Oregon:  Twiss  v.  Boehmer,  39  Ore. 
359,  65  Pac.  18.  Vermont:  Moore  v. 
Harvey,  50  Vt.  297.  Wisconsin:  J. 
B.  Alfree  Mfg.  Co.  v.  Henry.  96  Wis. 
327,  71  N.  W.  370. 

=  California:  Pico  v.  Phelan,  77 
Cal.     86,    19     Pac.    186.       Georgia: 


Williams  v.  Hollis,  19  Ga.  313; 
Jackson  v.  Mowry,  30  Ga.  143; 
Littleton  v.  Wynn,  31  Ga.  583;  Mc- 
Lendon  v.  West  Point  &c.  R.  Co.,  54 
Ga.  293;  Lathrop  v.  Standard  Oil 
Co.,  83  Ga.  307,  9  S.  E.  1041.  Iowa: 
Martin  v.  Knapp,  57  Iowa  336,  10 
N.  W.  721.  Maine:  Little  v.  Libby, 
2  Me.  242,  248;  Goddard  v.  Hall,  55 
Me.  579.  Massachusetts:  Leonard  v. 
Kingman,  136  Mass.  123;  Boston  v. 
Binney,  11  Pick.  (Mass.)  1;  Central 
Mills  V.  Hart,  124  Mass.  123.  Michi- 
gan: Ward  V.  Warner,  8  Mich.  508; 
Hogsett  V.  Ellis,  17  Mich.  351;  Wil- 
marth  v.  Palmer,  34  Mich.  347. 
Mississippi:  Scales  v.  Anderson,  4 
Cushm.  94.  Nevada:  Alexander  v. 
Archer,  21  Nev.  22,  24  Pac.  373; 
"Krug  V.  Davis,  101  Ind.  75;  Petty 
V.  Mailer,  15  B.  Mon.  (Ky.)  591, 
606;  Douglass  v.  Geiler,  32  Kan. 
499.  4  Pac.  1039;  Lakin  v.  Roberts, 
54  Fed.  461;  Dalton  v.  Laudahn,  30 
Mich.  349. 


3  ESSENTIALS    OF   A    TEXANCY,  [§    2 

nature  of  such  an  occupation  might  be  changed  to  a  tenancy  where  the 
owner  consents  to  the  occupation  and  the  occupant  does  some  act  in 
plain  recognition  of  the  owner's  title.'^  Where  a  judgment  of  eviction 
was  obtained  against  a  tort-feasor  who  then  accepted  a  lease,  he  was 
held  to  become  a  tenant  by  such  transaction.^  After  an  occupant  has 
acknowledged  the  title  of  the  owner  and  still  continues  to  occupy  the 
land  by  his  leave  and  license,  he  ceases  to  be  a  mere  trespasser,  and 
his  possession  becomes  the  possession  of  him  whose  title  he  has  ac- 
knowledged.^ However,  the  assent  to  the  holding  of  the  premises 
must  be  mutual,  and  the  consent  of  the  occupant  to  become  a  tenant 
is  ineffectual  to  constitute  a  tenancy  when  the  landowner  is  ignorant 
of  the  occupation.^"  The  converse  is  true  that  an  owner  of  land  can- 
not make  a  trespasser  thereon  his  tenant  merely  by  consenting  to  his 
continued  occupation  of  the  premises.^ ^  Yet  it  has  been  held  that  one 
may  be  the  tenant  of  an  unknown  landlord  by  means  of  an  agent 
with  an  undisclosed  principal.^- 

After  the  death  of  a  tenant  his  sons  entered  into  possession  and  used 
the  premises,  and  the  owner  attempted  to  charge  them  with  rent  as 
tenants.  On  the  authority  of  two  English  cases^^  it  was  held  that  the 
defendants  being  in  possession,  the  law  would  refer  that  possession 
to  a  rightful  rather  than  to  a  wrongful  title,  and  there  was  a  course 
through  which  that  title  might  be  fully  derived,  viz. :  by  supposing 
the  defendants  to  be  privy  to  the  term  granted  to  their  father.  If 
their  possession  was  referable  to  some  other  title  it  was  for  them 
to  show  it,  for  this  was  a  matter  lying  within  their  own  knowledge.^* 

In  one  case  a  kind  of  tenancy  was  created  by  operation  of  law 
where  an  action  was  brought  upon  an  injunction  bond  to  stay  the  ex- 
ecution of  a  writ  of  restitution  for  the  possession  of  land.  The  in- 
junction gave  the  protection  of  the  law  to  the  occupant  during  its 
pendency,  while  the  bond  secured  the  other  party  in  the  rent  during 
such  occupancy.  So  an  occupant  whose  original  entry  is  lawful,  and 
under  a  lease  or  permission  of  uncertain  duration,  may  be  regarded 
in  effect  as  tenant  or  quasi  tenant  under  rent,  during  the  pendency 
of  the  injunction.     Although  the  defendant  in  the  injunction  may 

'Lockwood   V.    Thunder   Bay    &c.  10  N.  W.  721;  Ackerman  v.  Lyman, 

Co.,  42  Mich.  536,  4  N.  W.  292.  20  Wis.  454. 

»Ball  v.  Lively,  1  Dana  (Ky.)   60,        '=  Charter  Oak  L.  Ins.  Co.  v.  Cum- 

65.  mings,  13  Mo.  App.  76. 
,  »Wilcher    v.    Robertson,     78    Va.         "Doe  v.  Murless,  6  M.  &  S.   110; 

602,  619.  Doe  v.  Williams,  6   B.   &  C.   41,   13 

">  Curtis  v.  Treat,  21  Me.  525.  E.  C.  L.  31. 

"Martin  v.  Knapp,   57   Iowa  336,         "Page  v.  McGlinch,  63  Me.  472. 


§    3]  CREATION   OF  THE  RELATION.  4 

rightfully  take  the  possession  on  the  dissolution  of  the  injunction,  it 
does  nwt  follow  that  he  is  absolutely  entitled  to  the  crop  then  grow- 
ing on  the  land.  Since  the  duration  of  the  occupancy,  as  dependent 
on  the  injunction,  is  uncertain,  it  would  seem  to  be  just  and  reason- 
able that,  although  by  improvidence  or  inadvertence,  the  decree 
directs  immediate  restitution  and  the  possession  of  the  land  may  be 
rightfully  taken,  the  party  turned  out,  before  the  crop  is  gathered, 
has  the  right  to  the  emblements.  ^^ 

§  3.  The  relation  of  landlord  and  tenant  cannot  be  inferred  as  a 
matter  of  law  from  the  mere  fact  of  lawful  occupancy."  Occupation 
alone  will  raise  this  relation  by  implication  only  when  the  occupancy 
of  the  premises  has  been  with  the  assent  of  the  owner,  and  without 
any  act  or  claim,  on  the  part  of  the  occupant,  inconsistent  with  an 
acknowledgment  by  the  occupant  of  the  owner  as  his  rightful  landlord. 
Moreover,  this  implication  may  be  rebutted  by  proof  of  a  contract,  or 
any  other  fact  inconsistent  with  the  existence  of  such  relation."  Thus, 
a  contract  to  purchase  and  occupation  under  it,  was  held  sufficient  to 
rebut  the  implication  of  the  existence  of  this  relation  arising  from 
the  occupancy.^*  A  suit  and  judgment  in  ejectment  has  been  held  to 
be  conclusive  evidence  that  this  relation  did  not  exist  during  the 
time  mesne  profits  could  be  recovered  in  the  ejectment  suit.^^  An 
ejectment  suit  which  fails  through  want  of  notice  does  not  work  an 
estoppel,  but  it  has  a  tendency  to  show  that  the  plaintiff  did  not  re- 
gard or  treat  the  defendant  as  his  tenant,  and,  therefore,  to  rebut  any 
implied  contract  of  tenancy  between  the  plaintiff  and  defendant.^'* 

Where  the  use  and  occupation  of  real  estate  is  under  such  circum- 
stances as  to  show  that  there  was  no  expectation  of  rent  by  either 
party,  a  contract  to  pay  rent  will  not  be  implied.^^  In  order  to  main- 
tain assumpsit  for  the  use  and  occupation  of  land  something  in  the 
nature  of  a  demise  must  be  shown,  or  some  evidence  given  to  establish 
the  relation  of  landlord  and  tenant.    That  relation  can  only  grow  out 

"Tinsley  v.  Tinsley,  15  B.  Mon.  350,  19  Atl.  387;  Collyer  v.  Collyer, 

(Ky.)   454.  113  N.  Y.  442,  21  N.  E.  114. 

"  Bailey  v.  Campbell,  82  Ala.  342,  "  Stacy    v.    Vermont    Central    R. 

2  So.  646;  Wilcher  v.  Robertson,  78  Co.,  32  Vt.  551. 

Va.  602,  619;  Central  Mills  v.  Hart,  ^^  Hough  v.  Birge,  11  Vt.  190. 

124  Mass.  123;   Porter  v.  Hubbard,  "Strong  v.  Garfield,  10  Vt.  502; 

134  Mass.  233;   Emerson  v.  Weeks,  Birch  v.  Wright,  1  Term.  R.  378. 

58   Cal.   439;    Hardin   v.   Pulley,   79  ==»  Chamberlin  v.  Donahue,  44  Vt. 

Ala.    381;    Swift   v.    New    Durham  57. 

Lumber  Co.,  64  N.  H.  53,  5  Atl.  903;  ^  Collyer  v.  Collyer,  113  N.  Y.  442, 

Tompkins   v.   Staiger,   52   N.   J.   L.  21  N.  E.  114. 


5  ESSENTIALS   OF   A   TENANCY.  [§    3 

of  a  contract,  and  it  has  accordingly  been  held  that  a  contract,  express 
or  implied  is  necessary  in  order  to  sustain  assumpsit  for  use  and  oc- 
cupation.-- 

Although  one  person  is  in  occupation  of  land  legal  title  to  which  is 
acknowledged  to  be  in  another,  such  occupation  may  be  explained  by 
showing  relations  existing  between  the  parties  other  than  that  of  land- 
lord and  tenant.-^  By  the  terms  of  a  will  a  father  held  lands  in  trust 
for  his  minor  children.  The  relation  of  landlord  and  tenant  between 
the  father  thus  holding  land  and  his  minor  children  was  not  inferred. 
"The  relative  positions  of  the  parties  may  be  referred  to  the  will.  In 
such  case  the  relation  of  executor  and  devisees  or  of  trustee  and  cestui 
que  trust,  subsists."^*  Where  there  is  an  absence  of  any  intention  to 
enter  into  the  relation  of  landlord  and  tenant,  mere  occupation  by  one 
other  than  the  owner  does  not  create  a  tenancy.  Thus,  no  tenancy 
exists  between  the  owner  of  the  fee  and  a  sub-lessee  who  occupies  his 
premises;-^  nor  is  a  husband  the  tenant  of  his  wife  by  reason  of  his 
cultivating  a  farm  which  was  her  separate  property,  in  case  there 
is  no  agreement  between  the  husband  and  wife,  and  such  an  agreement 
cannot  be  inferred.^°  A  similar  situation  arises  when  land  is  sold  on 
execution  and  the  execution  debtor  has  continued  in  possession  after 
title  has  been  transferred  to  the  purchaser ;  the  parties  do  not  become 
landlord  and  tenant.  There  is  no  implied  promise  on  the  part  of  a 
judgment  debtor,  whose  land  has  been  sold  under  execution,  to  hold 
as  tenant  of  the  purchaser.  Assumpsit  will  not  lie  against  a  judg- 
ment debtor  for  the  use  and  occupation  of  land  set  off  on  execution 
against  him,  where  he  contests  the  regularity  of  the  proceedings,  un- 
less an  express  contract  be  proved.  No  express  contract  of  tenancy  is 
pretended,  and  no  fact  appears  from  which  such  tenancy  may  be  im- 
plied." It  is  necessary  to  prove  a  direct  contract  in  order  to  constitute 
the  relation  of  landlord  and  tenant  and  for  an  execution  defendant 
to  remain  in  occupation  after  a  sale  of  the  land  is  no  proof  whatever, 

--  Central  Mills  v.  Hart,  124  Mass.  citing  Russell  v.  Erwin,  38  Ala.  44, 

123,  per  Ames,  J.,  citing  Merrill  v.  where  a  mother  held  land  for  her 

Bullock,   105    Mass.    486,   490;    Ban-  child  and  the  technical  relation  of 

croft  V.  Wardwell,  13  Johns.  (N.  Y.)  landlord   and   tenant   was   held   not 

489;  Smith  v.  Stewart,  6  Johns.  (N.  to    be   created    between    the    infant 

Y.)    46;    Stacy  v.  Vermont  Central  and  his  mother. 

R.  Co.,  32  Vt.  551;  Watson  v.  Brain-  =^  Crosby  v.  Home  &  Danz  Co.,  45 

ard,  33  Vt.  88;  Chamberlin  v.  Dona-  Minn.  249,  47  N.  W.  717. 

hue,  44  Vt.  57.  ="  Davis  v.  Watts,  90  Ind.  372. 

==*  Bailey  v.  Campbell,  82  Ala.  342,  =^  Tucker  v.  Byers,  57  Ark.  215,  21 

2  So.  646.  S.  W.  227;  Wyman  v.  Hook,  2  Me. 

=*  Hardin   v.    Pulley,   79   Ala.    381,  337. 


§    4]  CREATION   OF  THE  RELATION,  G 

cither  positive  or  circumstantial,  to  establish  such  a  contract.  So  it 
is  error  to  instruct  a  jury  that  they  may  infer  an  actual  agreement  for 
a  tenancy  from  such  facts^  as  there  is  no  proof  whatever  of  the  exist- 
ence of  such  a  contract.-^  However,  in  regard  to  the  question  of  adverse 
holding,  a  judgment  debtor,  remaining  in  possession  after  a  sale,  is 
regarded,  in  the  absence  of  all  evidence  to  the  contrary,  as  occupy- 
ing the  relation  of  quasi  tenant  at  will  to  the  purchaser.  But  this  is  a 
mere  presumption  of  fact,  which  may  be  rebutted  by  showing  that,  in 
fact,  he  was  holding  adversely  to  the  right  of  the  purchaser.  He  is 
under  none  of  the  positive  obligations  growing  out  of  the  relation  of 
tenant  by  actual  contract.^^  He  does  not  occupy  the  attitude  of  a  ten- 
ant, yet  the  law  will  not,  from  the  mere  fact  that  he  remained  in 
possession,  presume  that  his  possession  is  adverse.  The  execution  de- 
fendant, when  sued,  must  show  it  to  have  been  so,^** 

§  4.  An  award  of  arbitrators  cannot  create  the  relation  of  land- 
lord and  tenant  between  two  persons  who  have  not  assented  to  such  a 
relationship.  This  was  decided  in  a  case  where  one  person  bound  him- 
self under  a  penalty  to  convey  lands  at  such  sum  as  arbitrators  should 
award,  and  deposited  a  deed  with  the  arbitrators  to  be  delivered  on  the 
publishing  of  the  award,  and  agreed  in  the  meantime  to  become  ten- 
ant at  such  rent  as  the  arbitrators  should  award.  This  party  refused 
to  abide  by  the  bond.  Sufficient  notice  of  this  was  given  to  the  other 
party.  The  court  were  of  opinion  that  the  plaintiff  might  have  a  good 
cause  of  action  for  the  defendant's  not  performing  the  award,  but 
found  it  difficult  to  see  how  his  utter  denial  of  the  plaintiffs'  right 
to  become  his  landlord  should  operate  as  an  acknowledgment  of  his 
being  in  fact  their  tenant,  or  how  his  refusal  should  be  construed  into 
an  acquiescence.  "The  most  that  can  be  made  of  it  is  that  the  defend- 
ant entered  into  a  contract  to  become  tenant  to  the  plaintiffs  at  a 
future  day,  for  a  limited  time,  and  that  he  would  not  become  tenant 
as  he  had  agreed  to  do.  Under  those  circumstances  it  might  be  said 
that  he  had  broken  his  agreement  but  not  that  he  had  become  a  ten- 
ant under  it.  The  contract  was  executory  but  never  executed.  The 
relation  of  landlord  and  tenant,  therefore,  was  not  created  in  fact."^^ 
In  another  case  a  tenant  entered  into  a  written  agreement  under  seal 
with  the  wife  of  his  landlord,  whereby  they  submitted  certain  matters, 
growing  out  of  the  rent  of  the  premises,  to  arbitration.     The  award 

^O'Donnell      v.      McMurdie,       6  ^»  Chalfin    v.    Malone,    9    B.    Mon. 

Humph.   (Tenn.)   134.  (Ky.)   496. 

^  Keaton   v.   Thomasson,   2   Swan  ''  Boston     v.     Binney,     11     Pick. 

(Tenn.)  138.  (Mass.)  1,  7,  per  Putnam,  J. 


7  ESSENTIALS    OF   A   TENANCY.  [§'   5 

was  made  and  accepted  by  both  parties.  The  theory  was  then  ad- 
vanced that  by  the  submission  to  arbitration  of  the  matters  in  differ- 
ence, by  the  award  and  acceptance  and  performance  thereof  the  re- 
lation of  landlord  and  tenant  was  established  between  the  parties. 
But  the  court  held  that  the  award  and  acceptance  thereof  did  not 
amount  to  an  acknowledgment  of  the  wife  as  landlord,  and  if  they 
did  the  tenant  had  the  right  to  resume  his  tenancy  to  the  husband, 
who  was  the  real  owner  and  entitled  to  the  possession  and  under 
whom  the  tenant  had  received  possession  in  the  first  instance.^- 

§  5.  It  is  not  necessary  to  the  creation  of  a  tenancy  that  there 
should  be  a  formal  hiring,  letting  or  leasing  f^  but  the  agreement  may 
be  implied  in  fact  from  the  conduct  of  the  parties  and  the  attendant 
circumstances,  and  if  so  implied,  is  as  effectual  as  if  made  in  words, 
though  there  may  have  been  no  actual  lease,  written  or  verbal,  and  no 
formal  agreement.^*  The  relation  of  landlord  and  tenant  may  and  very 
often  does  arise  by  implication  from  occupation  of  premises  in  sub- 
ordination of  another's  title  under  circumstances  indicating  an  in- 
tention to  enter  into  the  relation.^^  Where  one  contemplates  entering 
into  possession  of  the  lands  of  another  to  occupy  for  use,  and  is  in- 
formed that  he  can  do  so  on  terms  stated  or  for  a  reasonable  com- 
pensation, entry  and  occupation  form  a  good  acceptance  of  the  terms 
proposed  and  the  tenant  becomes  bound  to  pay  the  sum  named  or  such 
price  as  the  use  is  reasonably  worth. ^® 

The  same  principle  applies  when  there  is  actual  possession  and  oc- 
cupation under  a  lease  which  is  invalid  for  want  of  proper  acknowl- 
edgment or  for  failure  to  comply  with  the  statute  of  frauds  and  the 
relation  of  landlord  and  tenant  arises  in  spite  of  the  defects  in  the 
lease.^^ 

='  Luttrell  V.  Caruthers,  5  111.  App.  '"  Dickson  v.  Moffat,  5   Colo.   114. 

544.  The   relation   of   landlord   and   ten- 

='  Insurance  Co.  of  Penn.  v.  O'Con-  ant  arises  where  one  by  consent  of 

nell,  34   111.  App.   357;    Eastman  v.  the    landlord    goes    into    possession 

Perkins,  111  Mass.  30.  of  leased  land  as  the  successor  in 

=*Rainey   v.   Capps,    22   Ala.   288;  interest    of    the    tenant,    and    after 

Baley  v.  Deakins,  5  B.  Mon.   (Ky.)  thus  occupying  the  land  at  the  stip- 

159.  ulated   rent  in   the   lease  continues 

='^  Candler   v.   Mitchell,   119   Mich,  to   occupy   after   the   expiration   of 

464,  78  N.  W.  551;  Conwell  v.  Mann,  the  lease.    Weaver  v.  Southern  Ore- 

100  N.  Car.  234,  6  S.  E.  782;  Cham-  gon  Co.,  31  Ore.  14,  48  Pac.  167. 

terlin  v.  Donahue,  44  Vt.  57;  Bacon  "Alabama:  Hays  v.  Goree,  4  Stew, 

v.  Bowdoin,  22  Pick.    (Mass.)    401;  &  P.  (Ala.)  170;  Nelson  v.  Webb,  54 

Kabley  v.  Worcester  Gas  Light  Co.,  Ala.  436;  Crawford  v.  Jones,  54  Ala. 

102  Mass.  392.  459;    Martin   v.    Blanchett,   77   Ala. 


§    G]  CREATIOX  OF  THE   RELATION.  S 

A  short  memorandum  added  to  a  receipt  has  been  held  to  be  a  com- 
plete lease,  though  entirely  informal  in  wording.  It  expressed  the  con- 
sent of  the  owner  that  the  other  party  should  have  immediate  posses- 
sion of  the  premises  and  should  continue  to  occupy  them,  at  a  speci- 
fied rent  and  for  a  definite  term  of  time.  Although  brief  and  informal 
it  had  the  essential  elements  of  a  present  demise.^  ^ 

WTiere  A.  puts  B.  in  possession  of  land,  saying  at  the  time,  "This 
is  a  home  for  you.  Go  and  live  in  it,"  and  B.  enters  under  such  au- 
thority, B.  becomes  the  tenant  of  A.  and  is  estopped  even  after  thirty 
years'  possession,  to  deny  the  title  of  A.  or  his  assigns.^'' 

An  instrument  whereby  one  lets  to  another  certain  real  property 
for  a  specified  rent,  to  commence  at  a  future  day,  is  a  lease  rather  than 
an  agreement  for  a  lease,  although  the  words  are  "agree  to  let."  If 
there  is  a  present  demise  for  a  term  to  commence  in  future  the  instru- 
ment is  a  lease  and  not  an  agreement  for  a  lease.**'  'WTietheT  an  instru- 
ment is  to  be  construed  as  a  present  demise  or  an  executory  contract 
for  a  lease  to  be  given  hereafter  depends  upon  the  intention  of  the 
parties  as  gathered  from  the  whole  instrument.  Where  the  owner 
agrees  in  writing  to  let  certain  land  to  another  at  a  stipulated  rent 
and  in  conclusion  says  he  will  make  a  lease  of  the  premises  for  three, 
with  a  privilege  of  five  years  from  date,  the  writing  is  not  a  present 
lease,  but  an  agreement  for  a  lease  to  be  thereafter  given.*^ 

§  6.  Reservation  of  rent  by  the  landlord  is  not  essential  to  the 
creation  of  a  tenancy  ;*2  the  demise  may  be  gratuitous  or  for  a  lump 

288.    Connecticut:    Allen  v.  Holkins,  worth,  108  Mass.  357;  Dix  v.  Atkins, 

1  Day  17.    Kentucky:     Drubaker  v.  130  Mass.  171;  Kimball  v.  Cross,  136 

Poage,     1     T.    B.     Mon.     123,     126.  Mass.  300;  Duncklee  v.  Webber,  151 

Tennessee:    Duke  v.  Harper,  6  Yerg.  Mass.  408,  24  N.  E.  1082. 

279,  284;   Shepherd  v.  Cummings,  1  *^  McGrath   v.    Boston,    103    Mass. 

Cold.  354;  Noel  v.  McCrory,  7  Cold.  369;   Hinckley  v.  Guyon,  172  Mass. 

623,  627;  Hammond  v.  Dean,  8  Baxt.  412,  52  N.  E.  523. 

193.  ^=Amter  v.   Conlon,   22  Colo.   150, 

^Eastman  v.  Perkins,  111   Mass.  43   Pac.   1002;    Osborne  v.   Humph- 

30;     Weed     v.     Crocker,     13     Gray  rey,    7   Conn.   335,    340;    Hooton   v. 

(Mass.)   219.  Holt,   139   Mass.   54,   29   N.   E.    221; 

^^  Conwell   V.    Mann,   100   N.    Car.  Cheever     v.      Pearson,      16      Pick. 

234,  6  S.  E.  782.  (Mass.)  266,  271;  McKissack  v.  Bul- 

^Weed     V.     Crocker,     13     Gray  lington,  37  Miss.  535;  Hunt  v.  Com- 

(Mass.)   219;   Bacon  v.  Bowdoin,  22  stock,  15  Wend.    (N.  Y.)    665,  667; 

Pick.    (Mass.)    401;    Fiske  v.   Fram-  Failing  v.  Schenck,  3  Hill    (N.  Y.) 

ingham  Mfg.  Co.,  14  Pick.    (Mass.)  344;    Mahoney  v.   Farley,   17  Wkly. 

491;  Kabley  v.  Worcester  Gas  Light  Dig.   (N.  Y.)   277;   Foster  v.  Penry, 

Co.,  102  Mass.  392;  Shaw  v.  Farns-  76  N.  Car.  131;  Mitchell  v.  Common- 


9  ESSENTIALS    OF   A   TEXAXCT.  [§    6 

siim/^  or  the  obligation  to  pa}-  rent  may  be  implied  from  the  circum- 
stances.** A  verbal  agreement  under  which  the  lessee  was  to  have  a 
right  to  remain  in  possession  of  the  premises  during  life,  without 
charge,  would,  if  proved,  at  least  show  that  he  was  a  tenant  at  will 
up  to  the  time  when  such  holding  was  terminated  in  some  manner.*^ 
A  written  acknowledgment  of  a  person  who  is  in  the  occupation  of 
land,  that  he  holds  it  as  tenant  of  another,  does  not  raise  a  presump- 
tion of  law  that  he  promises  to  j)ay  rent,  nor  transfer  the  burden  of 
proof  on  the  question  of  fact  whether  they  understand  rent  is  to  be 
paid.  A  promise  to  pay  rent  in  such  a  case,  implied  from  occupation 
and  -tenancy,  is  an  inference  of  fact.  In  one  case  the  evidence  showed 
that  the  acknowledgment  of  tenancy  was  made  to  enable  the  plaintiff 
to  complete  the  foreclosure  of  a  mortgage  and  left  it  doubtful,  at  least, 
whether  there  was  an  understanding  that  rent  was  to  be  paid.  From 
the  defendant's  occupation  and  acknowledged  tenancy  the  law  does 
not  imply  a  promise  to  pay  rent.  The  question  whether  there  was 
such  a  promise,  is  a  question  of  fact.  Unless  the  question  be  raised 
that  the  verdict  is  against  the  evidence,  the  decision  of  this  question 
is  for  the  jury.**'  A  definite  agreement  to  pay  rent  is  not  essential  to 
create  the  relation  of  landlord  and  tenant ;  and  an  action  for  use  and 
occupation  will  lie  where  defendant  with  plaintiff's  consent  has  en- 
tered upon  land  and  uses  it  for  his  own  profit.*'  Where  a  demise  for 
life  was  on  the  condition  that  the  occupant  should  pay  interest  on  a 
mortgage  and  on  purchase  money,  it  was  held  the  parties  became  land- 
lord and  tenant  and  the  interest  could  be  collected  by  distress.**^ 

Eent  may  be  reserved  in  services  as  well  as  in  money,  as  where  a 
tenant  at  will  agreed  to  keep  off  trespassers  in  return  for  the  use  of 
the  land.    A  valid  tenancy  at  will  was  created  by  such  arrangement.*^ 

wealth,    37    Pa.    St.    187;    Floyd    v.  tion  as  a  mere  permission  to  enter 

Floyd,  4  Rich.  L.   (S.  C.)    23;   State  upon  and  occupy  the  land." 

v.  Page,  1  Speer  (S.  C.)   408.    Com-        « Osborne  v.  Humphrey,   7   Conn. 

pare  a  remark  by  Champlin,  J.,  in  335,  340. 

Shaw  V.Hill,  79  Mich.  86:    "In  a  ten-        **  Wilkinson  v.  Wilkinson,  62  Mo. 

ancy  at  will,  rent  in  some  manner  App.  249. 

must  be  reserved,  and  must  be  such         "  Hooton  v.  Holt,  139  Mass.  54,  29 

as  accrues  from  day  to  day."     And  N.  E.  221. 

in  Simpkins  v.  Rogers,  15  111.  397,        ''  Bank  v.  Getchell,  59  N.  H.  281. 

the  court  say:    "We  are,  however,  not        "Wilkinson  v.  Wilkinson,  62  Mo. 

inclined  to  hold  that  there  was  any  App.  249. 

tenancy  in  the  case.    One  of  the  es-        ■''Reed  v.  Kitchen,  1  Am.  L.  Reg. 

sential    qualities    of    a    lease    was  (Pa.)  635. 

wanting,  the  reservation  of  rent  to        *^  Shaw  v.  Hill,  79  Mich.  86,  44  N. 

the  owner.    We  regard  the  transac-  W.  422. 


§    7]  CKEATIOX   OF  THE  RELATION.  10 

§  7.  The  validity  of  a  landlord's  title  is  not  material  in  deter- 
mining whether  one  occupying  his  premises  stands  in  the  relation  of 
tenant  to  him.  The  relation  of  landlord  and  tenant  does  not  rest 
upon  the  landlord's  title  but  upon  the  agreement  between  the  parties 
followed  by  the  possession  of  the  premises  by  the  tenant  under  such 
agreement.""  Wliere  the  grantor  in  a  trust  deed  joins  with  the  cred- 
itors secured  in  a  request  to  the  trustee  to  permit  a  certain  person  to 
occupy  the  premises,  he  thereby  places  the  trustee  in  possession,  and 
the  trustee  becomes  the  landlord  of  such  person.  It  is  competent  for 
a  mortgagor  to  place  the  mortgagee  in  possession,  or  assent  to  his  pos- 
session which  the  mortgagee  may  defend  or  assert.^^  The  relation  of 
landlord  and  tenant  may  exist  between  two  parties,  although  the  land- 
lord is  not  himself  the  owner  of  the  premises  but  is  a  renter  from 
the  owner.^^  When  a  lessee  sub-lets,  he  becomes  lessor  to  his  sub-lessee 
and  is  entitled  to  the  same  lien  on  his  crop  which  the  statute  gives  to 
the  lessor.  The  lessee,  for  advances  made  to  his  tenant,  would  occupy 
toward  him  the  relation  of  lessor  with  the  rights  incident  to  that  rela- 
tion. ^^ 

But  upon  no  principle  of  reason  or  law  can  the  absolute  owner  of 
lands,  in  possession,  be  made  chargeable  with  rent.  Pending  the  pro- 
ceedings to  condemn  land  by  eminent  domain,  the  relation  of  land- 
lord and  tenant  does  not  exist  between  the  parties  to  the  proceeding. 
The  commissioners  making  the  condemnation  did  not  have  the  legal 
title  and  a  tenancy  will  not  be  implied  under  one  who  has  not  the  legal 
estate.  The  landowner  did  not  enter  in  subordination  to  the  title  of 
any  other  person  and  never  acknowledged  any  obligation  to  another. 
He  was  in  possession  as  owner  of  the  fee,  and  claiming  adversely  to 
all  the  world,  and  the  proceedings  for  condenmation  were  an  acknowl- 
edgment of  his  title.^* 

°°  Cherokee     Strip    &c.     Ass'n     v.  the  Cherokee  Nation   was  void  be- 

Cass  &c.  Co.,  138  Mo.  394,  40  S.  W.  cause    not   executed    in    compliance 

107.    In  this  case  the  original  lease  with     the     United     States     statute, 

was  forbidden  by  statute  and  void,  while   no    such   objection   exists   as 

This  was  held  not  to  affect  the  va-  to    the    contract    between    plaintiff 

lidity   of   the   sub-lease.    The   court  and  defendant." 

said:    "The  contract  between  plain-  "Candler   v.   Mitchell,   119    Mich, 

tiff  and  defendant  is  a  contract  to  464,  78  N.  W.  551. 

which  the  Cherokee  Nation  is  not  "  Strickland  v.  Stiles,  107  Ga.  308, 

a  party  and  must  be  governed  both  33  S.  E.  85;   Morgan  v.  Morgan,  65 

as  to  the  manner  of  its  execution  Ga.  493. 

and    its    construction,    by    the    law  "  Moore  v.  Faison,  97  N.  Car.  322, 

applicable  to  contracts  entered  into  2  S.  E.  169. 

by   persons   competent   to   contract.  ^  Cook  v.  South  Park  Com'rs,  61 

The  contract  between  plaintiff  and  111.  115. 


11  SUBJECT   ]\IATTER.  [§§    8,    9 

§  8.  The  fiduciary  relation  of  a  lessee  to  one  who  is  entitled  to  the 
beneficial  enjoyment  under  the  lease  does  not  prevent  the  creation  of 
a  tenancy.  So  when  a  lease  runs  in  the  name  of  a  trustee,  the  relation 
between  the  landlord  and  the  nominal  lessee  is  strictly  a  legal  rela- 
tion and  does  not  come  within  the  scope  of  equity  jurisdiction.^^ 

II.     Subject  Matter. 

§  9.  The  general  rule  is  that  any  kind  of  property,  corporeal  or 
incorporeal,  which  may  be  transferred  by  livery  or  by  grant,  may  be 
the  subject  of  a  demise. ^^  Thus  the  right  to  fish  in  certain  waters  may 
be  transferred  for  a  term  of  years  and  the  estoppel  against  denying 
the  landlord's  title,  which  accompanies  an  ordinary  lease  of  land, 
operates  against  the  lessee."  A  riparian  owner  along  a  navigable 
stream  who  owns  the  fee  of  the  bed  thereof  to  the  center  line  may 
lease  the  right  to  cut  ice  forming  on  his  portion  of  the  stream.^^  Such 
a  lease  gives  the  lessee  a  right  to  maintain  an  action  against  one  who 
has  wrongfully  interfered  with  his  right  to  gather  the  ice.^*^  A  grant 
of  the  privilege  to  draw  the  sap  from  turpentine  trees  is  a  suitable 
interest  to  be  transferred  by  demise  and  when  completed  takes  effect 
as  a  lease  of  real  estate.*'*'  So  a  grant  of  all  timber,  grass  and  berries 
that  may  be  grown  on  certain  land  for  a  term  of  years  is  a  valid  lease.*'^ 
Franchises  and  public  rights  can  be  transferred  by  lease  provided 
such  a  transfer  does  not  interfere  with  the  performance  of  a  duty  the 
owner  owes  to  the  public.  Thus  a  railway  corporation  cannot  lease  its 
lines  and  the  right  to  operate  them  without  authority  from  the  legis- 
lature.*'^  But  with  such  consent  there  is  no  objection  to  such  a  lease 
as  there  are  no  difficulties  on  account  of  the  nature  of  the  interest.*'^ 

"''January   v.    Stephenson,    2    Mo.  •"Rooks   v.   Moore,   Busb.   L.    (N. 

App.  266.  Car.)    1;    Denton    v.    Strickland,    3 

'"Bacon's  Abr,  Leases  (A);  Shep.  Jones  L.   (N.  Car.)  61. 

Touch.  268.  "Freeman  v.  Underwood,  66  Me. 

"Watertown   v.   White,    13    Mass.  229. 

477;     Eastham    v.     Anderson,     119  «=  Beman   v.   Rufford,   1    Sim.    (U. 

Mass.       526;       Commonwealth       v.  S.)  550,  6  Eng.  L.  &  Eq.  106;  Great 

Weatherhead,  110  Mass.  175.  Northern  R.  Co.  v.  Eastern  &c.  R. 

=' Oliver    v.    Olmstead,    112    Mich.  Co.,  9  Hare  306;    Winch  v.  Birken- 

483,  70  N.  W.  1036.  head  &c.  R.   Co.,  13  Eng.  L.  &  Eq. 

°°Lorman  v.  Benson,  8  Mich.  18,  506;    Commonwealth    v.    Smith.    10 

77  Am.   Dec.   435;    People's  Ice  Co.  Allen   (Mass.)   448. 

V.  Steamer  Excelsior,  44  Mich.  229,  •"  Black    v.    Delaware    &c.    Canal 

38   Am.   R.    246;    Grand   Rapids  &c.  Co.,  22  N.  J.  Eq.  130;  United  States 

Co.  v.  South  Grand  Rapids  &c.  Co.,  Trust  Co.  v.  Wabash  &c.  R.  Co.,  150 

102  Mich.  227,  47  Am.  St.  516.  U.  S.  287,  14  Sup.  Ct.  86;   Troy  &c. 


10] 


CREATIOX  OF  THE  RELATIOX. 


The  right  to  do  certain  acts  on  hind  of  another,  as  to  flow  it  with 
water,  may  take  effect  as  an  easement.  Yet  it  has  been  held  that  a 
properly  executed  agreement,  giving  the  owner  of  a  mill-site  the 
right,  for  a  stipulated  annual  compensation,  to  flow  the  adjoining 
lands  of  another  for  an  indefinite  period,  by  the  erection  of  a  dam 
upon  his  own  premises,  creates  a  tenancy  in  such  lands.®*  An  agree- 
ment which  gives  an  exclusive  right  to  mine  coal,  to  use  five  acres  of 
surface  land  for  buildings,  to  build  railroads  upon  and  flow  water 
upon  land,  and  provides  for  a  royalty  for  coal  mined  payable  as  rent 
not  to  fall  below  a  fixed  amount  each  year,  is  a  lease  and  creates  the 
relation  of  landlord  and  tenant.  It  is  none  the  less  a  lease  because  a 
part  of  the  land  is  to  be  removed;  it  is  not  a  sale  of  the  coal,  but  a 
lease  of  the  land.*'^ 

However,  an  agreement  to  furnish  steam  power  by  the  year  or 
month  has  been  held  not  to  constitute  a  tenancy  entitling  the  party 
furnishing  it  to  a  notice  to  quit.*'" 

§  10.  Where  chattels  are  let  for  a  term,  so  long  as  the  term  con- 
tinues the  lessor  or  bailor  can  only  bring  an  action  on  the  case  for  an 
injury  to  them,  but  where  the  term  is  ended  by  a  wrongful  sale,  the 
lessor  can  bring  detinue  or  trover.®'^  So  if  machinery  be  leased  and 
the  lessee  severs  it  from  the  freehold,  it  revests  instanter  in  the  lessor, 
who  may  maintain  trover  even  during  the  continuance  of  the  term. 
By  the  lease  or  agreement  the  tenant  has  the  use,  not  the  dominion, 
of  the  property  demised,  and,  therefore,  when  he  separated  any  part 
of  it,  his  right  of  using  it  was  at  an  end  for  any  legal  purpose,  that 
right  being  only  to  use  it  in  the  state  it  was  before.®^  Lord  Bacon 
says  that  "if  one  lease  for  years  a  stock  of  live  cattle,  such  lease  is 
good,  and  the  lessee  hath  only  the  use  and  profits  of  them  during  the 
term;  but  yet,''  adds  the  learned  author,  "the  lessor  hath  not  any  re- 
version in  them  to  grant  over  to  another.""'^  It  seems  that  the  lessor 
has  only  a  possibility  of  property  in  case  they  outlive  the  term.    An 


R.  Co.  V.  Kerr,  17  Barb.  (N.  Y.) 
581,  601;  West  London  R.  Co.  v. 
London  &c.  R.  Co.,  11  C.  B.  254; 
London  &c.  R.  Co.  v.  South  East- 
ern R.  Co.,  8  Exch.  584;  Ware  v. 
Grand  Junction  &c.  Co.,  2  R.  & 
Myl.  470. 

"Morrill  v.  Mackman,  24  Mich. 
279. 

°=Lacey  v.  Newcomb,  95  Iowa 
287,  63  N.  W.  704. 


°*  Dwj'er  V.  Newmann,  2  N.  J.  L.  J. 
315. 

^"  Swift  V.  Moseley,  10  Vt.  208; 
Sanborn  v.  Colman,  6  N.  H.  14; 
Billings  V.  Tucker,  6  Gray  (Mass.) 
368. 

^  Farrant  v.  Thompson,  5  B.  & 
Aid.  826. 

**  Bacon's  Abr.  Leases  A. 


13  SUBJECT    MATTER.  [§    10 

action  for  injury  to  sheep,  which  was  committed  during  the  terms 
for  which  they  had  been  leased  and  while  the  lessee  was  entitled  to 
possession,  must  be  brought  by  the  lessee.'^''  It  is  well  settled  that  a 
person  having  neither  the  possession  nor  the  right  to  possession  of 
personal  chattels  cannot  maintain  trespass  or  trover  for  an  injury  done 
to  the  property.'^^  Wliere  cattle  were  leased  for  a  term  of  years,  to  be 
taken  back  by  the  owner,  within  the  term,  if  he  should  think  them 
unsafe  in  the  hands  of  the  lessee,  it  was  held  that  the  lessor  could  not 
reclaim  them  from  an  attaching  creditor  of  the  lessee.'''-  Where  the 
lessee  of  a  farm  received  from  his  lessor  cattle  and  implements  of 
husbandry  and  agreed  to  return  property  of  the  same  value  and  kind 
at  the  end  of  the  lease  but  not  the  identical  property,  the  cattle  and 
goods  thus  delivered  belong  to  the  tenant  during  the  term  and  can 
be  levied  on  by  his  creditors.^ ^  In  an  agreement  for  letting  at  an 
annual  rent,  such  contract  does  not  lose  its  character  as  a  renting  by 
the  fact  that  personal  property  is  included  in  the  contract.'^*  In  one 
case  a  lessor  leased  furniture  in  the  demised  premises  to  his  lessee 
and  agreed  to  sell  him  the  furniture  at  the  end  of  the  term  upon 
performance  of  all  the  covenants  and  undertakings  in  the  lease.  This 
was  construed  to  be  a  conditional  sale  and  title  did  not  pass  to  the 
lessee  till  the  conditions  were  fulfilled. '^^  In  the  case  of  a  lease  of  a 
house  with  goods,  it  is  usual  to  make  a  schedule  of  the  goods,  and 
have  a  covenant  from  the  lessee  to  redeliver  them  at  the  end  of 
the  term,  for  otherwise  the  lessor  can  only  have  trover  or  detinue 
for  them.  The  law  will  not  imply  a  covenant  in  regard  to  things 
personal.''®  It  has  been  held  that  if  one  make  a  lease  of  lands  and 
goods,  and  the  lands  are  recovered  against  him,  he  shall  hold  the 
goods  till  the  end  of  the  term  and  the  rent  shall  be  apportioned.'^^ 
And  apportionment  of  rent  was  also  allowed  where  real  and  per- 
sonal property  was  demised  by  one  instrument  and  the  title  to  the 
personal  property  failed.''^ 

'"Triscony  v.  Orr,  49  Cal.  612.  "  Mickie    v.    Lawrence,    5    Rand. 

"2    Hilliard    on    Torts    502;    Ed-  (Va.)  571. 

wards     on     Bailments,     §315;      2  "  Bean  v.  Edge,  84  N.  Y.  510. 

Greenl.   Ev.,   §  616;    Story  on  Bail-  "Bull.    N.    P.    157;    1    Roll.    Abr. 

ments,    §§  394,    93;     Muggridge    v.  519,  Gov.   (F.)   S.  P.;   Zule  v.  Zule, 

Eveleth,  9  Met.  (Mass.)  233.  24  Wend.  (N.  Y.)  76. 

"Wyman    v.    Dorr,    3    Me.    183;  "Year  Book,  12  Hen.  VIII,  c.  II, 

Putnam  v.  Wyley,  8  Johns.   (N.  Y.)  pi.  5;  Richard  le  Taverner's  Case,  1 

432.  Dyer  56a. 

"Carpenter  v.  Griffin,  9  Paige  (N.  "Newton  v.  Wilson,  3  Hen.  &  M. 

Y.)  310.  (Va.)  470. 


^§    11,    12]  CREATION   OF    THE   RELATION.  14 


III.     Proof  of  Tenancy. 

§  11.     The  existence  of  a  tenancy  or  of  the  relation  of  landlord 
and  tenant  with  reference  to  a  particular  piece  of  ground  is  a  fact 

like  that  of  possession  and  may,  and  generally  must,  be  proved  or 
disproved  by  parol  evidence,  such  as  by  payment  of  rent  or  the  ad- 
missions or  declarations  of  the  parties.'^''  Tenancy  may  be  inferred 
from  the  acts  and  conversations  of  the  parties  and  an  express  con- 
tract need  not  be  proved.^"  Where  one  in  occupation  of  land  belong- 
ing to  another  is  told  of  the  terms  on  which  he  may  continue  to  oc- 
cupy and  makes  no  objection  thereto,  he  becomes  a  tenant  and  is 
liable  for  the  stated  rent.^'  The  acceptance  of  possession  of  premises 
offered  on  certain  known  terms  and  occupation  during  the  period 
designated  creates  a  tenancy,  and  the  tenant  is  bound  for  rent  even 
though  he  objected  to  the  terms.*^  An  expired  lease,  under  which  the 
rent  has  all  been  paid,  may  be  offered  in  evidence  to  show  that  the  rela- 
tion of  landlord  and  tenant  exists  between  an  owner  and  occupant 
of  land.  The  tenancy  which  was  thus  proved  was  from  year  to  year.«^ 
"The  production  of  a  lease  will  not  of  itself  show  that  the  rela- 
tion of  landlord  and  tenant  existed  between  the  parties  to  the  lease 
*  *  *  because  there  must  be  further  shown  by  competent  evidence, 
the  entry  of  the  lessee  under  the  lease,  or  a  holding  of  the  posses- 
sion of  the  premises  by  the  lessee  that  will  be  referable  to  the  lease 
as  his  authority.''^* 

§  12.  The  payment  of  rent  is  a  fact  going  to  the  establishment  of 
a  tenancy,  but  it  has  been  held  not  to  be  sufficient  in  or  of  itself  to 
prove  such  a  relation  exists.^^  The  relation  of  landlord  and  tenant 
must  arise  in  respect  to  a  specific  piece  of  ground  and  so  it  must 
appear  that  rent  was  paid  and  received  in  return  for  the  use  of  the 
premises  in  regard  to  which  the  alleged  tenancy  exists.  The  general 
rule  has  been  stated  to  be  that  proof  of  payment  of  rent  by  an  oc- 

'"Hearn  v.  Gray,  2  Houst.   (Del.)         "  Loring  v.   Taylor,   50   Mo.  App. 

135;  Victory  v.  Stroud,  15  Tex.  373;  80. 

McDowell  V.  Hyman,  117  Cal.  67,  48         ""  Dickson  v.  Moffat,  5  Colo.  114. 
Pac.    984;    Jackson   v.    Vosburgh,    7         «=  Longfellow    v.     Longfellow,     54 

Johns.   (N.  Y.)  186.  Me.  240. 

^''Ladd      V.      Higgle,      6      Heisk.         «^  Caldwell  v.  Center,  30  Cal.  539. 
(Tenn.)  620.  ^^  Sanford     v.     Herron,     161     Mo. 

176,  61  S.  W.  839. 


15  PROOF  OF  TENAXCY.  [§    13 

cupant  of  premises  is  sufficient  prima  facie  proof  of  the  relation  of 
landlord  and  tenant  between  him  and  the  owner  to  whom  payment 
is  made.*®  It  is  certainly  true  that  a  tenancy  may  be  proved  by  parol 
or  circumstantial  evidence,  as  by  proof  of  the  payment  and  receipt 
of  rent*^  and  it  has  been  held  that  a  promise  to  pay  rent  shows  the 
promisor  to  be  a  tenant  of  the  promisee.®*  Occupation  of  the  premises, 
and  payment  of  rent  to  the  agent  of  tenants  in  common  are  enough 
to  raise  the  implication  of  a  joint  demise.*®  Moreover  when  the  ques- 
tion of  a  tenancy  arises  collaterally  to  the  main  issue,  payment  of 
rent  by  the  alleged  tenant  to  one  claiming  as  owner  is  sufficient  evi- 
dence of  the  relation.®"'  An  action  for  rent  by  a  landowner  against 
a  trespasser  is  also  sufficient  proof  of  a  tenancy  as  against  the  land- 
owner. By  suing  for  rent  he  alleges  the  existence  of  such  a  relation 
and  he  cannot  subsequently  assume  an  inconsistent  position.®^ 

While  payment  and  receipt  of  rent  will  ordinarily  raise  a  neces- 
sary inference  of  a  tenancy,  such  is  not  the  case  where  a  judgment 
of  eviction  has  been  entered  against  tenant,  and  he  appeals,  and  pend- 
ing the  appeal  secures  his  right  to  continue  in  possession  by  giving 
bond  for  which  privilege  he  pays  rent  which  is  accepted  by  the  land- 
lord.   The  obligation  to  pay  is  created  by  statute.®- 

Wliere  there  is  a  written  lease  to  begin  on  the  completion  of  a 
building,  and  the  lessee  takes  possession,  and  pays  rent,  which  pay- 
ment is  indorsed  on  the  lease,  it  will  be  conclusively  presumed  that 
the  lessee  occupied  the  premises  under  the  lease  and  recognized  its 
binding  force.  Though  there  is  something  unsatisfactory  about  the 
manner  of  the  completion,  and  some  changes  are  needed,  these  things 
do  not  go  to  the  validity  of  the  lease.  At  most  they  afforded  an  op- 
portunity to  claim  damage.  This  is  especially  true  in  case  there  is 
no  evidence  of  any  other  agreement  between  the  parties  in  respect  to 
such  occupancy  and  rent.®^ 

All  charges  for  the  privilege  of  using  real  estate  are  not  necessarily- 
paid  as  rent  and  do  not  necessarily  tend  to  show  a  tenancy.  The 
privilege  obtained  might  be  a   mere  license  of  an  casement.   Such  was 

'"Voiht    V.     Resor,     80     111.     331;  ""Virginia    Min.    &    Imp.    Co.    v. 

Howe  V.  Gregory,  2  Ind.  App.  477,  Hoover,  82  Va.  449,  4  S.  E.  689. 

28  N.  E.  776;    Cressler  v.  Williams,  ■"Cunningham   v.   Holton,   55   Me. 

80  Ind.  366.  33,  57  Me.  420. 

8' Barrett   v.    Jefferson,    5    Houst.  "-Hopkins  v.  Holland,  84  Md.  84, 

(Del.)   477.  35  Atl.  11. 

^  Hill  V.  Boutell,  3  N.  H.  502.  "'  Hammond    v.    Barton,    93    Wis. 

s"  Porter  v.   Bleiler,   17  Barb.    (N.  183,  67  N.  W.  412. 
Y.)  149. 


§    13]  CREATIOX   OF   THE   RELATIOX.  16 

the  case  where  payments  were  made  for  the  right  to  store  lumber  on 
the  land  of  another.'^'* 

§  13.  Entry  and  occupation  by  one  of  several  joint  lessees  is  the 
entry  and  occupation  of  all  as  far  as  the  landlord  is  concerned,  whatever 
may  be  their  relation  among  themselves,  "Where  two  of  four  joint 
lessees  enter  ujDon  and  occupy  certain  premises  under  a  written  agree- 
ment made  with  the  owner  of  the  premises,  and  signed  by  all  of  them, 
and  make  the  entry  at  the  time  designated  in  the  agreement  for  the 
commencement  of  the  occupancy,  and  the  other  two  do  not  make 
actual  entry  upon  and  occupy  the  premises,  the  occupancy  of  the  first 
two  was  the  occupancy  of  all  four,  and  upon  the  terms  designated  in 
the  agreement,  and  all  four  are  lessees  of  the  landlord,  whatever 
might  be  their  relations  inter  se,  and  as  such  lessees  they  are  responsi- 
ble to  the  landlord  in  an  action  for  use  and  occupation." ^^ 

The  prima  facie  case  of  tenancy  made  out  by  proving  occupancy 
may,  however,  be  rebutted'^*'  and  the  relation  of  landlord  and  tenant 
will  not  be  inferred  if  the  occupation  can  be  otherwise  explained.®^ 
The  absence  of  occupancy  by  the  alleged  tenant  and  of  any  promise 
on  his  part  to  pay  rent  will  justify  a  finding  that  no  tenancy  exists.®^ 

Cleaning  a  room  by  a  prospective  tenant  is  an  equivocal  act  in  re- 
gard to  proving  occupation.  It  might  be  an  act  of  possession  or  it 
might  be  simply  an  act  of  preparation  for  further  investigation. 
If  the  cleaning  was  done  only  as  an  act  of  preparation  for  further 
investigation  on  the  part  of  the  prospective  tenant  before  decid- 
ing on  the  matter,  then  the  fact  of  the  cleaning  was  of  no  con- 
sequence.^^ A  building  in  process  of  erection  was  leased  and  the  de- 
fendant caused  his  name  to  be  painted  on  a  sign  before  it  was  com- 
pleted, and  after  it  was  done  sent  his  porter  to  sweep  it  out  but  did 
no  other  acts  of  taking  possession.  This  constituted  a  taking  of 
possession  and  he  was  liable  for  rent.  The  rule  is  that  any  overt  act 
indicating  dominion  and  the  purpose  to  occupy  and  not  to  abandon 
the  premises  is  sufficient  to  carry  the  question  of  possession  to  the 

"  Ducey  Lumber  Co.  v.  Lane,  58        "  Bailey  v.  Campbell,  82  Ala.  342, 

Mich.  520,  25  N.  W.  568.  3  So.  646. 

°=Goshorn  v.  Steward,  15  W.  Va.        *' Emerson  v.  Weeks,  58  Cal.  439, 

657;    Howell   v.   Behler,   41   W.   Va.  441. 
610,  24  S.  B.  646.  "» Lewis  v.  Havens,  40  Conn.  363. 

^^  Hogsett  v.   Ellis,  17  Mich.  351.         '■"  Pacific  Express  Co.  v.  Tyler  &c. 

Compare  Whaley  v.  Whaley,  2  Harr.  Co.,  72  Mo.  App.  151. 
(Del.)    53. 


d    I 


17  INTEKESSE    TERMINI.  [§§    14,    15 

§  14.  Province  of  judge  and  jury. — On  doubtful  facts  the  jury 
must  determine  whether  the  relation  exists."^  Whether  or  not  an 
implied  contract  of  tenancy  exists  in  any  given  case  is  a  question  of 
fact  for  the  jury,  to  be  determined  by  them  upon  all  the  circum- 
stances of  the  case.^*'-  Wliere  A.  said  to  B.,  "Go  on  and  cultivate  my 
farm  and  raise  crops  and  I  will  do  what  is  right  by  you,"  it  was  for 
the  jury  to  determine  whether  a  tenancy  or  employment  was  in- 
tended. ^•'^  In  case  a  landowner  is  being  charged  with  liability  for  a 
defect  in  premises,  it  is  a  question  of  fact  whether  an  occupant  thereof 
is  a  tenant  holding  under  such  circumstances  as  to  exonerate  the 
owner  from  liability  for  the  dangerous  condition  of  the  building.^*** 
A  finding  of  the  jury  that  the  occupant  was  in  possession  of  prem- 
ises as  tenant  cannot  be  set  aside  if  supported  by  the  evidence.""  Evi- 
dence of  collateral  and  inconclusive  facts,  not  pertinent  to  the  real 
issue  are  inadmissible.  Accordingly,  where  the  sole  issue  is  whether 
defendant  had  become  tenant  of  plaintifE,  it  is  not  competent  for 
defendant  to  show  that  before  the  time  of  the  alleged  contract,  de- 
fendant was  in  possession  of  the  land  under  an  executory  contract  of 
purchase.^"" 

Upon  agreed  facts  the  question  whether  a  tenancy  exists  is  for 
the  court.  It  is  exclusively  within  the  province  of  the  jury  to 
find  all  inferences  of  fact,  from  facts  stated,  while  the  court  is 
precluded  from  so  doing  and  is  confined  to  the  facts  stated.  But 
the  legal  consequences  or  conclusions  from  the  facts  so  stated  are  for 
the  court.  ^•'^  The  legal  character  and  effect  of  a  transaction  and  of  an 
instrument  introduced  as  a  lease  are  questions  of  law,  and  when 
jurisdiction  depends  on  the  existence  of  a  tenancy,  they  go  to  the 
foundation  of  the  action,  and  cannot  be  waived  by  counsel,  by  neglect 
or  otherwise,  in  the  conduct  of  the  cause.  "^ 

IV.     Interesse  Termini. 

§  15.  Under  the  old  common  law  a  bare  lease  did  not  give  any 
estate  in  the  land,  but  only  gave  a  right  of  entry  which  was  called 

101  Swanner   v.    Swanner,    50    Ala.  "=  Hanlon  v.  Thompson,  167  Mass. 

66;   Duncan  v.  Beard,  2  N.  &  McC.  190,  45  N.  E.  88. 

(S.  C.)    400;    Cunningham  v.   Cam-  ""Hawkins    v.    James.    69    Miss. 

bridge  Sav.  Banlt,  138  Mass.  480.  274.  13  So.  813. 

"=Chamberlin  v.  Donahue,  44  Vt.  "'Howard    v.    Carpenter,    22    Md. 

57.  10. 

"^McKenzie    v.    Sykes,    47    Mich.  "^  ]sjig]itingale  v.  Barens,  47  Wis. 

294,  11  N.  W.  164.  389,    2    N.    "W.    767;    Rothbauer    v. 

"*  Cunningham  v.  Cambridge  Sav.  State,  22  Wis.  468;  Nelson  v.  Roun- 

Bank,  138  Mass.  480.  tree,  23  Wis.  367. 
Jones  L.  &  T.— 2 


§    15]  CREATION   OF  THE  RELATION.  IS 

the  lessee's  interest  in  the  term  or  "intcresse  termini."  Wlien  the 
lessee  had  actually  entered  and  thereby  accepted  the  grant,  the  es- 
tate became  vested  in  him,  but  until  entry  he  could  not  maintain 
trespass. ^°^  It  is  laid  down  in  many  of  the  ancient  authorities  that  a 
lessee  before  entry  cannot  maintain  trespass.^^"  In  one  case  an  owner 
in  fee  demised  lands  for  a  term  of  years  subject  to  a  proviso  that 
the  lessor  should  not  pay  a  certain  debt,  and  to  a  restriction  that  the 
lessee  should  not  enter  into  possession  before  a  certain  time.  Prior 
to  that  time  the  lessee  brought  trespass  against  sheriffs  who  levied 
on  the  premises  as  the  property  of  the  lessor.  A  rule  for  a  non- 
suit against  the  plaintiff  was  made  absolute.^^^  The  true  ground  for 
this  decision  was  said  to  be  that  a  lessee  for  years  before  entry  can- 
not bring  trespass.  It  is  pointed  out  in  the  same  case  that  an  in- 
tcresse termini  is  sufficient  to  enable  a  person  to  demise  to  a  plaintiff 
in  ejectment  whose  entry  is  admitted.  So  that  any  technical  diffi- 
culty as  to  trespass  not  lying  when  a  mortgagee  of  leasehold  prop- 
erty brings  ejectment  before  entry  would  be  avoided.^^^  But  it  is  a 
well  settled  general  principle  that  the  assignee  of  a  term  cannot 
maintain  trespass  in  respect  to  the  premises  unless  he  has  actually 
entered  into  possession  of  them.  All  the  authorities  agree  that  to  en- 
title a  party  to  maintain  trespass,  actual  entry  is  necessary.  To 
render  him  liable  on  the  covenants  an  assignment  in  law  is  sufficient ; 
but  to  maintain  trespass,  there  must  be  an  actual  entry.^^^  Still  a 
lessee,  even  before  entry,  has  sufficient  interest  in  the  leased  premises 
to  entitle  him  to  bring  ejectment  to  recover  possession  of  them."* 

An  interesse  termini  is  created  by  a  demise  even  though  the  lessee 
has  no  present  right  to  obtain  an  estate  in  the  land  by  entering  under 
his  lease.  Whether  the  term  is  to  commence  immediately  or  at  a  fu- 
ture day,  the  interesse  termini  at  once  vests  in  the  lessee,  upon  the 
execution  of  the  lease."^  But  where  an  outstanding  right  would  pre- 
vent the  lessee  from  ever  entering  under  his  lease  it  seems  that  he 
acquires  no  interesse  termini.  Such  a  case"  arose  under  the  following 
circumstances :    An  eight-acre  lot,  part  of  a  larger  tract  of  land,  was 

^'^Lee  v.  Lee,  74  N.  Car.  70;  Lar-  B.    N.    S.    678,    112    E.    C.    L.    678; 

kin  v.  Avery,  23  Conn.  304,  314.  Ryan  v.  Clark,  14  Q.  B.  65,  73,   68 

""Co.  Litt.  296b,  Com.  Dig.,  Tres-  E.  C.  L.  63. 
pass   (B).  "*Doe  v.  Day,  2  Q.  B.  147,  156,  42 

"^Wheeler  v.  Montefiore,  2  Q.  B.  E.  C.  L.  612;    Ryan  v.  Clark,  14  Q. 

133,  42  E.  C.  L.  605.  B.  65,  73,  68  E.  C.  L.  63. 

"=Doe  V.  Day,  2  Q.  B.  147,  156,  42         "'Lock  v.  Furze,  19  C.  B.  N.  S.  96, 

E.  C.  L.  612.  103,   115  E.  C.  L.  94,  L.   R.  1   C.  P. 

"'Harrison    v.    Blackburn,    17    C.  441. 


19  IXTERESSE    TERMINI.  [§    16 

subject  to  an  outstanding  lease.  The  entire  tract  was  leased  for  a 
shorter  period  than  the  eight-acre  lease  had  to  run,  and  the  lessee 
went  into  possession  of  the  rest  of  the  land.  It  was  held  he  did  not 
even  have  an  interesse  termini  in  the  eight-acre  lot,"*'  because  a  lease 
which  cannot  take  efEect  in  interest,  except  by  possibility,  if  it  be  not 
an  estoppel,  shall  be  void.^"  It  is  laid  down  in  the  language  of  Lord 
Chief  Baron  Gilbert  that  "if  one  makes  a  lease  to  A.  for  ten  years, 
and  the  same  day  makes  a  parol  lease  to  B.  for  ten  years  of  the  same 
lands,  this  second  lease  is  absolutely  void,  and  can  never  take  effect 
either  as  a  future  interesse  termini,  or  as  a  reversionary  interest, 
though  the  first  lessee  should  forfeit  or  otherwise  determine  his  es- 
tate.""^ So  the  lease  was  void  as  to  a  part  of  land  conveyed  and  rent 
could  not  be  apportioned.  There  is  no  case  where  an  entire  rent  re- 
served has  been  held  to  be  apportionable  in  which  the  tenant  has  not 
been  at  some  period  subject  to  the  entire  rent  by  virtue  of  the  de- 
mise. Therefore  the  lessor  was  not  entitled  to  distrain  for  the  whole 
rent  or  for  any  part  of  it.^^^ 

■After  a  parol  lease  of  land  to  take  effect  in  futuro  had  been  agreed 
upon,  the  owner  of  the  land  sold  a  right  of  way  over  it  to  a  raih\ay 
company.  This  company,  acting  without  knowledge  of  the  lease,  and 
prior  to  the  time  when  possession  under  it  was  to  be  transferred,  con- 
tracted for  the  construction  of  its  road.  After  the  lessee  entered  into 
possession  he  attempted  to  hold  the  railway  company  as  a  joint  tres- 
passer for  a  disturbance  of  his  possession.  This  could  not  be  done. 
There  is  no  law  charging  one  with  notice  of  a  parol  lease  before  occu- 
pation has  been  taken  under  it.  Prior  to  taking  possession  a  tenant 
under  a  verbal  lease  has  no  estate  in  the  lands,  so  when  the  company 
contracted  for  the  construction  of  the  road,  the  lessee  had  no  interest 
in  the  land.^^** 

§  16.  Even  though  there  is  an  cutsanding-  interesse  termini,  the 
owners  of  the  reversion  could  maintain  an  action  of  trespass  against 
a  disseisor.  As  between  the  owner  of  tlie  fee  and  the  disseisor,  the 
right  of  entry  accompanies  the  lawful  seisin;  the  disseisin  having 
ousted  and  dispossessed  the  tenant  as  well  as  the  landlord;  and  the 
entry  operating  to  restore  the  rights  of  both.  The  reversioners'  seisin 
undoubtedly  gave  them  a  right  of  entry,  carrying  with  it  a  right  of 
possession,  against  all  persons  except  the  tenants  for  years.    But  the 

""Neale  v.  Mackenzie,  1  M.  &  W.  "» Neale  v.  Mackenzie,  1  M.  &  W. 

747.  747. 

"'  Comyns's  Dig.,  Estates,  G.  13.  ''"  McKinley  v.  Chicago  &c.  R.  Co., 

"5  Bacon's  Abr.,  Leases  (N).  40  Mo.  App.  449. 


§    17]  CREATION  OF  THE  RELATION.  20 

tenants  for  years  had  been  dispossessed  by  the  disseisin;  and  so  no 
possession  of  theirs  could  be  violated  by  the  reversioners'  entry.^^^ 
There  are  authorities  for  the  doctrine  that  the  owner  of  the  reversion 
has  a  right  of  entry  on  a  tenant  for  years,  without  dispossessing  him, 
as  to  view  in  respect  of  waste,  to  demand  rent  where  a  rent  is  reserved, 
to  repair,  or  the  like.^^^  Until  the  reign  of  Edward  III  a  lessee  for 
years  ousted  by  a  stranger  had  no  remedy  by  which  to  recover  his  es- 
tate, but  to  apply  to  his  lessor  to  bring  a  real  action  to  recover  back 
the  seisin  of  the  freehold  from  the  trespasser;  and  then  the  lessor 
having  obtained  the  seisin,  the  tenant's  right  to  have  the  term  again 
attached,  and  it  became  vested  in  him.^^^ 

§  17.  If  a  lease  is  so  worded  as  to  be  a  bargain  and  sale  under 
the  statute  of  uses,  actual  entry  is  unnecessary,  and  possession  is  im- 
mediately executed  in  the  lessee.  Blackstone  thus  describes  the  mode 
of  conveyance  by  lease  and  release:  "A  lease,  or  rather  bargain  and 
sale,  upon  some  pecuniary  consideration,  for  one  year,  made  by  the 
tenant  of  the  freehold,  to  the  lessee  or  bargainee.  ]SI"ow  this  without 
any  enrollment  makes  the  bargainor  stand  seized  to  the  use  of  the 
bargainee  and  vests  in  the  bargainee  the  use  of  the  term  for  a  year; 
and  then  the  statute  immediately  annexes  the  possessions.  He  there- 
fore being  thus  in  possession  is  capable  of  receiving  a  release  of  the 
freehold  and  reversion."^  ^* 

A  valid  lease  of  real  property  entitles  the  lessee  to  the  entire  charge 
of  it  during  the  term  stipulated  for  without  any  further  act  on  the 
part  of  the  lessor  and  the  execution  of  such  a  lease  is  a  complete 
leasing  even  before  entry.^^^ 

In  speaking  of  a  lease  where  the  lessee  had  not  entered  into  pos- 
session it  was  said:  "No  such  relation  (of  landlord  and  tenant)  ex- 
isted. The  mere  signing  of  the  agreement  (lease)  does  not  establish 
that  relation,  although  it  may  create  a  right  of  action  for  damages 
for  a  breach  of  the  contract  or  for  a  specific  performance  of  it.  The 
defendant  had  never  taken  possession  under  this  contract."^^®  The  in- 
strument in  this  case  was  clearly  a  lease  and  not  merely  an  agreement 
for  one.  A  regular  rent  was  reserved  of  more  than  nominal  amount. 
So  the  court  must  have  overlooked  the  fact  that  this  would  take  effect 

1=1  Brewer    v.    Stevens,    13    Allen  i=^  2  Bl.  Com.  339. 

(Mass.)  346.  '"- Chung  Yow  v.   Hop   Chong,  11 

i~Hunt  V.  Dowman,  Cro.  Jac.  478;  Ore.  220,  4  Pac.  326. 

Bro.  Ab.  Tresp.  97.  ""  James  v.  Kibler,  94  Va.  165,  26 

1=^  Brewer    v.    Stevens,    13    Allen  S,  E.  417. 
(Mass.)   346. 


21  SIMILAR   COXTRACTUAL    RELATIONS.  [§18 

as  a  bargain  and  sale  and  the  estate  would  be  executed  in  the  lessee 
by  virtue  of  the  Statute  of  Uses. 

The  question  of  entry  by  the  lessee  becomes  important,  however, 
when  there  is  no  express  covenant  to  pay  rent  and  the  lessor  seeks  to 
recover  rent  by  suit.  An  action  for  use  and  occupation  under  the  stat- 
ute^"  does  not  lie  where  there  has  not  been  an  actual  entry  by  the 
lessee.^^* 

V.     Similar  Contractual  Relations. 

§  18.  In  general. — In  distinguishing  tenancy  from  other  con- 
tractual relations  a  lease  may  be  defined  to  be  a  contract  for  the  pos- 
session and  profits  of  lands  and  tenements  on  the  one  side  and  a  recom- 
pense of  rent  or  other  income  on  the  other.^-^  The  relation  of  landlord 
and  tenant  may  exist,  however,  although  certain  collateral  matters  are 
contained  in  the  contract  of  letting.  Illustrations  of  this  are  found  in 
leases  which  give  the  lessee  an  option  to  purchase,^^*^  or  where  the 
lessor  binds  himself  to  erect  buildings  on  the  premises.^" 

On  the  other  hand,  contractual  relations  may  exist  between  persons 
with  regard  to  the  occupation  of  land  which  impose  duties  and  re- 
strictions similar  to  those  of  a  tenancy,  and  yet  there  will  not  be  a 
tenancy.  Thus,  an  agent  using  and  controling  the  land  of  his  prin- 
cipal would  not  ordinarily  become  his  tenant.^^'^  Contracts  for  the  cul- 
tivation of  land  upon  shares,  contracts  for  lodgings,  contracts  for  em- 
ployment, and  license  to  do  certain  acts  upon  land  of  another  may 
all  be  made  without  establishing  the  technical  relation  of  landlord 
and  tenant.  The  test  in  every  case  is  the  intention  of  the  parties; 
but  in  determining  that  intention  more  or  less  arbitrary  rules  of  con- 
struction have  grown  up  which  will  be  discussed  and  explained  in  the 
following  pages. 

^"11  Geo.  2   c.  19,  §  4.  worthy  of  notice  in  this  connection: 
i=^Lowe  v.  Ross,  5  Ex.  553.  "Even    if   one   takes    possession    of 
'^  Gary  Hardware  Co.  v.  McCarty,  land  as  agent  and  uses  and  controls 
10    Golo.    App.    200,    50    Pac.    744;  it  the  relation  of  landlord  and  ten- 
Branch    V.    Doane,    17    Gonn.    402;  ant  arises."    Ward  v.  Small,  90  Ky. 
Bruckman  v.  Dry  Goods  Go.,  91  Mo.  198,  204,  12  Ky.  L.  R.  58,  13  S.  W. 
App.    454;     Sawyer    v.    Hanson,    24  1070,  citing  Farrow  v.  Edmundson, 
Me.  542,  545;   Bentley  v.  Adams,  92  4  B.   Mon.    (Ky.)    605,  which   holds 
Wis.  386,  66  N.  W.  505.  that  an  agent  in  occupation  of  land 
""See  infra,  §§  387-388.  for   his   principal    cannot   deny   the 
"1  See  infra,  §§  372-381.  latter's    title.     The    principal    case 
"=  Hopkins  v.  Ratliff,  115  Ind.  213,  can    hardly   be    regarded   as   repre- 
17   N.   E.   288.    The   following   Ian-  senting  the  law  generally, 
guage    of    the    Kentucky    court    is 


§    19]  CREATION    OF    THE    EELATION.  22 

§  19.  Statutory  remedy  dependent  on  technical  relation  of  land- 
lord and  tenant. — In  New  York  the  cases  are  numerous  in  which  the 
summary  remedy  to  regain  possession  of  real  estate  has  been  refused 
because  the  contract  or  circumstances  under  which  the  owner  of 
premises  permitted  another  to  take  possession  of  them,  contemplated 
some  condition  or  consideration  apart  from  rent,  or  a  tenancy  at  the 
mere  sufferance  or  will  of  the  owner.^^^^  The  right  to  take  advantage 
of  this  remedy  depends  on  the  existence  of  the  conventional  relation 
of  landlord  and  tenant,  and  this  conventional  relation  means  the 
relation  created  by  the  convention  or  agreement  of  the  parties.^^* 
In  one  case  an  owner  of  premises  induced  his  nephew  to  live  with 
him  and  make  a  home  for  him  on  the  promise  that  the  nephew  should 
receive  the  property  by  devise.  The  occupation  being  under  such  a 
contract,  it  was  decided  that  the  nephew  could  not  be  regarded  as  a 
tenant  and  evicted  by  means  of  the  summary  process  provided  by 
statute.  "Whatever  else  may  be  said  of  such  an  agreement,"  remarks 
the  court,  "it  is  plain  that  it  is  not  one  of  leasing  premises.  It  is 
rather  one  to  provide  the  petitioner  with  board  and  the  comforts  of 
a  home  with  his  kindred.  No  such  thing  as  rent  was  spoken  of,  nor 
was  it  within  the  intention  of  the  parties.  The  tenure,  so  far  as  it 
was  defined  at  all,  seemed  to  be  one  that  would,  bye  and  bye,  ripen  into 
a  fee."i=»^ 

In  many  other  jurisdictions,  the  right  to  maintain  summary 
process  for  the  recovery  of  land  is  made  to  depend  on  the  existence 
of  the  relation  of  landlord  and  tenant  between  the  parties.  A  person 
in  possession  of  lands  under  a  contract  of  purchase  is  not  a  tenant,  so 
as  to  subject  him  to  a  warrant  of  forcible  detainer.^ ^^  The  statutory 
process  cannot  be  used  to  evict  a  mortgagor  who  holds  over  after  a 
breach  of  condition  and  a  foreclosure  of  the  mortgage. ^^'^  Under  the 
Wisconsin  statute  it  was  held  that,  if  there  was  no  lease,  and  the  re- 
lation of  landlord  and  tenant  did  not  exist  between  the  parties,  a 

i^Dolittle  V.   Eddy,   7   Barb.    (N.  "^Matthews  v.  Matthews,  49  Hun 

Y.)    74;    People  v.  Annis,   45   Barb.  (N.  Y.)  346. 

(N.  Y.)   304;   Haywood  v.  Miller,  3  ""Hay  v.  Connelly,  1  A.  K.  Marsh. 

Hill  (N.  Y.)  90;  Russell  v.  Russell,  (Ky.)  393;  Jack  v.  Carneal,  2  A.  K. 

32  How.  Pr.   (N.  Y.)   400;   Williams  Marsh.  (Ky.)  518. 

V.    Bigelow,    11   How.    Pr.    (N.    Y.)  "' Davis  v.  Hemenway,  27  Vt.  589; 

83;  Sims  v.  Humphrey,  4  Denio  (N.  Plato  v.   Roe,   14  Wis.   453;    Ott  v. 

Y.)   185;   Roach  v.  Cosine,  9  Wend.  Rape,  24  Wis.  336;   Ragan  v,  Simp- 

(N.  Y.)   227.  son,  27  Wis.  355. 

^Benjamin  v.  Benjamin,  5  N.  Y. 
383. 


23  SIMILAR    CONTRACTUAL    RELATIONS.  [§    20 

trial  justice  had  no  authority  conferred  by  the  statute  to  decide  a 
case  in  regard  to  the  summary  recovery  of  land.^^^ 

A  purchaser  of  premises  at  an  execution  sale  in  actual  possession 
agreed  to  reconvey  to  the  execution  debtor  at  the  end  of  three  years 
if  the  latter  would  forego  his  right  of  redemption  and  allow  the  pur- 
chaser to  retain  possession  rent  free  during  such  three-year  term. 
For  a  failure  to  reconvey  according  to  the  terms  of  this  contract,  the 
court  held  that  an  action  of  forcible  detainer  would  lie  against  the 
occupant,  as  he  became  a  tenant  at  sufferance  by  his  wrongful  hold- 
ing over.^^® 

§  20.  A  servant  or  employe  occupying  a  house  of  his  master  does 
not  ordinarily  become  his  tenant.  This  question  came  up  before 
the  court  of  Exchequer  Chamber  in  an  early  case  upon  an  indictment 
for  burglary.  The  prosecutors  were  partners  in  their  business  of 
bankers,  which  business  was  transacted  in  the  lower  rooms  of  the 
house  where  the  burglary  was  committed,  of  the  whole  of  which  house 
they  were  owners.  They  were  also  partners  in  a  brewery  concern, 
which  they  carried  on  in  some  adjoining  premises.  The  upper  rooms 
were  inhabited  by  a  man  who  was  servant  to  the  prosecutors  in  their 
brewery  business  at  weekly  wages,  with  firing  and  lodging  for  himself 
and  his  family.  The  contract  as  to  the  lodging  was  not  in  general 
terms  that  he  should  be  provided  with  lodgings,  but  that  he  should 
have  the  particular  rooms  which  he  did  inhabit ;  and  to  that  part  of 
the  house  there  was  a  separate  entrance  from  without.  The  question 
before  the  court  was  whether  this  inhabitancy  could  be  considered  as 
the  inhabitancy  of  the  prosecutors  by  their  servant  or  whether  the  em- 
ployee by  the  contract  became  tenant,  and  the  upper  part  of  the  house 
was  his  dwelling-house.  The  judges  were  of  opinion  that  the  employee 
did  not  become  a  tenant.  Lord  Mansfield  referred  to  the  fact  that 
*'many  servants  have  houses  given  them  to  live  in,  as  porters  at  park 
gates,''  and  then  disposed  of  the  case  by  asking,  "if  a  master  turns 
away  his  servant,  does  it  follow  that  he  cannot  evict  him  till  the  end 
of  the  year?"  Lord  Ellenborough  suggests  that  this  employee  could 
not  have  maintained  trespass  against  his  employers  for  entering  these 
rooms ;  and  puts  the  question,  "if  a  man  assigns  to  his  coachman  tlie 
rooms  over  his  stable,  does  he  thereby  make  him  his  tenant?""" 

It  may  be  stated  as  a  general  rule  that  where  the  employee  occupies 

"« Nightingale  v.  Barens,  47  Wis.         '^"Steele    v.    Steele,    2    Tex.    App. 
389,  2  N.  W.  767.  Cas.,  §  345. 

"°  King  v.  Stock,  2  Taunt.  339. 


§    20]  CREATION  OF  THE  RELATION.  24 

premises  of  his  employer  for  the  purpose  of  better  carrying  on  the  em- 
ployer's business,  and  without  payment  of  rent,  these  circumstances 
are  usually  decisive  that  the  relation  of  landlord  and  tenant  does 
not  exist  between  the  parties. ^^  When  the  employer  furnishes  a 
house  for  the  employee  to  occupy  during  his  employment  and  as 
part  of  his  compensation,  this  is  also  indicative  of  an  intention  not 
to  create  a  tenancy.^*^ 

In  one  case  a  person  was  employed  by  the  owner  of  land  to  super- 
intend the  land  and  look  after  the  business  of  the  owner,  and  while 
in  such  employment  he  occupied  a  house  which  was  situated  upon  the 
land.  His  occupancy  of  the  house  did  not  create  the  relation  of  land- 
lord and  tenant  between  him  and  the  owner.^^^  A  party  in  possession 
under  contract  to  care  for  property  and  with  the  privilege  of  pur- 
chasing was  held  not  to  become  a  tenant  by  virtue  of  such  arrange- 
ment."* It  has  also  been  decided  that  a  Eoman  Catholic  priest  in 
charge  of  a  church  and  parish  house  was  not  the  tenant  of  his  bishop,"^ 
and  the  same  conclusion  was  reached  in  regard  to  a  protestant  minister 
who  lived,  rent  free,  in  a  parsonage  owned  by  his  church. ^*^  The  sit- 
uation was  analogous  and  warranted  an  application  of  the  same  doc- 
trine in  the  case  of  a  school  teacher  occupying  the  school  house  where 
he  taught,**^  and  in  the  case  of  a  lock-tender  for  a  canal  company,  who 
occupied  a  house  and  garden  on  the  company's  land.^*^  A  public  officer 
is  not  a  tenant  of  the  state  or  municipality  for  which  he  works,  al- 
though he  uses  the  office  with  which  he  is  supplied  in  part  to  transact 
his  private  business.^*^ 

An  old  wooden  building,  situated  on  untaxed  land  owned  by  a  hos- 
pital corporation,  was  inhabited  by  a  workman,  with  his  family,  who 

"^Rex  V.  Cheshunt,  1  B.   &  Aid.  "'Davis  v.  Williams,  130  Ala.  530, 

473;    State  v.   Curtis,  4   Dev.   &  B.  30  So.  488. 

(N.  Car.)   222;   Mead  v.  Pollock,  99  ^"  Reeder  v.   Bell,   7   Bush    (Ky.) 

111.  App.  151;   Haywood  v.  Miller,  3  255. 

Hill  (N.  Y.)  90;  Kerrains  v.  People,  '«  Chatard  v.   O'Donovan,   80   Ind. 

60  N.  Y.  221,  19  Am.  R.  158,  revers-  20. 

ing  1  Thomp.  &  C.  333;  McQuade  v.  ""East   Norway   Lake   Church   v. 

Emmons,  38  N.  J.  L.  397.  Froislie,  37  Minn.  447,  35  N.  W.  260. 

'"Haywood  v.  Miller,  3  Hill   (N.  "'School      District     No.      11      v. 

Y.)    90;    People  v.  Annis,   45   Barb.  Batsche,    106   Mich.    330,    64   N.    W. 

(N.  Y.)  304;  Doyle  v.  Gibbs,  6  Lans.  196;    State  v.   Curtis,   4   Dev.  &   B. 

(N.  Y.)    180;    Bowman   v.   Bradley,  (N.  Car.)   222. 

151   Pa.  St.  351,  24  Atl.  1062;    Doe  "« Morris      Canal      &c.      Co.      v. 

v.  Derry,  9  C.  &  P.  494,  38  E.  C.  L.  Mitchell,  31  N.  J.  L.  99. 

291.  ""  Board    of   Supervisors   v.    Cow- 
gill,  97  Mich.  448,  56  N.  W.  849. 


I 


25  SIMILAR    CONTRACTUAL   RELATIONS.  [§    20 

was  exclusively  emplo3'ed  by  the  corporation,  from  whose  wages  the 
superintendent  of  the  hospital  deducted  a  certain  sum  monthly  and 
gave  him  a  receipt  therefor  as  rent,  he  crediting  the  corporation  with 
the  sum  so  deducted.  On  the  trial  of  the  issue  whether  a  tax  was 
lawfully  assessed  on  this  building  it  was  held  that  this  arrangement 
did  not  create  a  tenancy  and  the  building  could  not  be  taxed  as 
property  from  which  the  corporation  derived  an  income.  "If  the 
occupation  was  one  merely  by  reason  of  service,"  said  the  court  in 
disposing  of  this  question,  "the  building  being  held  as  incident  only 
to  the  general  purpose  for  which  the  land  was  held,  and  occupied  by 
the  person  charged  with  the  care  of  the  buildings  on  the  hospital 
grounds  for  reasons  of  convenience;  and  the  rent  was  paid  and  re- 
received,  in  the  manner  stated,  as  a  convenient  mode  of  adjusting  the 
compensation  of  the  person  so  employed,  and  not  as  an  income  or 
fruit  of  an  estate  granted ;  we  are  of  opinion  that  tlie  exemption  would 
still  attach  to  the  property.  By  the  ruling  of  the  court  below,  as  we 
understand  it,  the  question  was  made  to  turn  upon  the  single  fact  of 
the  payment  and  receipt  of  rent.    This  we  think  was  erroneous."^^" 

The  fact  that  the  employee,  with  the  permission  of  the  proprietor, 
keeps  up  and  maintains  a  separate  establishment  and  table,  though 
strengthening  the  inference  afforded  by  the  use  of  separate  apart- 
ments, is  yet  not  conclusive  of  the  existence  of  the  relation  of  land- 
lord and  tenant.  It  may  be  rebutted  by  other  testimony  that  such 
separate  establishment  was,  though  separate,  not  independent  of  the 
proprietor's  control,  but  consistent  with  his'  right  of  supervision  and 
control.^  ^^ 

While  the  position  of  a  servant  occupying  a  house  belonging  to  his 
master  is  that  of  a  mere  licensee,  it  has  been  suggested  that  im- 
mediately upon  the  termination  of  the  employment,  a  tenancy  at  will 
or  by  sufferance  springs  up.^^^  This  is  not  so.  In  order  to  have  that 
effect  the  occupancy  must  be  sufficiently  long  to  warrant  an  inference 
of  consent  to  a  different  holding.  Any  considerable  delay  wouhl  be 
sufficient,  but  there  is  no  principle  which  would  change  the  occupant 
eo  instanti,  from  a  mere  licensee  to  a  tenant.  The  employer  should 
resume  control  of  his  property  within  a  reasonable  time  or  consent 
would  be  inferred.  Whether  this  time  is  a  day  or  a  week  may  depend 
on  circumstances.^^^   In  one  case  the  consent  of  the  employer  that  the 

>="  Massachusetts  Gen.  Hospital  v.  '"People  v.  Annis,  45   Barb.    (N. 

Somerville,  101  Mass.  319,  326,  per  Y.)  304. 

Wells,  J.  "'Kerrains   v.    People.    60    N.    Y. 

^'-'^  Waller  v.   Morgan,   18  B.  Mon.  221,  19  Am.  R.  158,  reversing  1  T.  & 

(Ky.)   136,  142.  C.  333. 


§  21]  CEEATIOX  OF  THE  KELATIOX.  26 

employee  might  remain  until  his  wife  recovered  from  an  illness,  was 
held  not  to  amount  to  a  consent.^^*  In  the  ordinary  case,  where  an  em- 
ployee occupying  rooms  of  his  employer  is  discharged,  he  is  not  en- 
titled to  the  notice  to  quit  which  is  necessary  when  a  tenant  is  guilty 
of  holding  over.^^^ 

§  21.  There  is  no  inconsistency  in  the  relation  of  master  and 
servant  with  that  of  landlord  and  tenant.  A  master  may  pay  his 
servant  by  conferring  on  him  an  interest  in  knd  either  in  fee,  for 
years,  at  will,  or  for  any  other  estate  or  interest,  and  if  he  do  so  the 
servant  then  becomes  entitled  to  the  legal  incidents  of  the  estate  as 
much  as  thought  it  were  purchased  for  any  other  consideration.^^®  The 
mere  fact  that  an  employee  occupies  one  of  his  employer's  rooms  with- 
out paying  rent  for  it  does  not  necessarily  disprove  the  relation  of 
landlord  and  tenant.  To  establish  a  holding  as  a  servant,  the  occu- 
pancy must  be  subsidiary  and  necessary  to  the  service. ^^^ 

In  one  case  arising  on  an  indictment  for  forcible  entry  the  servant 
occupied,  with  his  family,  a  separate  and  distinct  dwelling,  several 
hundred  yards  from  that  of  the  employer  and  under  a  special  con- 
tract by  which,  for  his  services  as  a  laborer  he  was  to  have  furnished 
him  a  dwelling  place  and  a  monthly  allowance  of  meal  and  meat,  as 
well  as  the  privilege  of  cultivating  a  small  strip  of  land  for  his  own 
benefit.  The  court  were  of  opinion  that  this  created  the  legal  relation 
of  landlord  and  tenant  between  the  parties.^^*  The  ground  on  which 
the  decision  rests  is  thai  the  house  occupied  by  the  servant  was  so 
far  away  from  the  master's  residence  that  it  was  just  the  same  as  if  it 
had  been  on  a  separate  and  disconnected  lot  of  land.  The  real  point 
on  which  the  case  should  have  turned,  was  the  nature  of  the  occu- 
pation, which  was  in  pursuance  of  a  contract  for  employment. 
The  case  seems  inconsistent  with  a  previous  decision  in  the  same 
jurisdiction^^''  and  contrary  to  the  general  trend  of  authority. 

A  contract  to  employ  a  laborer  for  a  year  at  certain  wages  and  to 
furnish  him  with  a  house  and  pasture  privileges  at  a  stipulated  rate 
is  not  a  leasing  for  a  year.  Furnishing  the  house  is  simply  a  mode 
of  paying  for  services.  From  the  time  the  servant  quits  work  he  would 

'=^*Doyle  V.  Gibbs,  6  Lans.  (N.  Y.)  i=^  Snedaker    v.    Powell,    32    Kan. 

180.  396,  4  Pac.  869. 

"=  Clark  V.   Vannort,   78   Md.   216,  '''  State  v.  Smith,  100  N.  Car.  466, 

27  Atl.  982.  6  S.  E.  84. 

"'Hughes  V.  Chatham,  5   Man.  &  ""State  v.  Curtis,  4  Dev.  &  B.  (N. 

G.  54,  44  E.  C.  L.  39.        '  Car.)    222. 


27  SIMILAR    COXTRACTUAL    RELATIONS.  [§    23 

be  in  no  better  position  than  a  strict  tenant  at  will  who  has,  by  his 
own  act,  terminated  the  tenancy  and  would,  at  most,  be  entitled  only 
to  a  reasonable  time  for  removing  from  the  house."*'  It  has  been  held, 
in  a  case  where  a  servant  was  to  be  given  the  use  of  land  in  payment 
for  services,  and  failed  to  render  the  services,  that  the  servant  was  not 
entitled  to  emblements  as  a  tenant  at  will.  The  usual  rule  is  that  the 
possession  of  land  on  which  a  crop  is  growing  continues  in  a  tenant  at 
will  until  the  time  of  taking  it  arrives.  But  this  rule  has  no 
application  to  the  case  of  a  tenant  who  has  himself  terminated  the 
tenancy  without  the  fault  of  the  lessor.^ *^ 

§  22.  An  independent  contractor  who  contracts  to  do  certain  acts 
on  land  belonging  to  another  does  not  become  a  tenant  unkss  he 
goes  into  possession.  So  a  contract  to  grade  city  lots  was  held  not 
to  give  the  contractor  the  rights  of  a  tenant  in  them.^''-  Where  tlie 
owner  of  a  mine  entered  into  a  contract  to  have  certain  improve- 
ments made  in  it,  and,  as  payment,  to  allow  the  party  making  them 
to  operate  the  mine  for  a  year  on  a  stated  basis  for  sharing  in  the 
metal  produced,  this  was  held  to  constitute  a  lease  and  not  an  operat- 
ing contract.  The  lessee  was  expressly  authorized  to  use  necessary 
fuel  and  to  cultivate  so  much  of  the  surface  as  was  necessary  to  pro- 
vide provender  for  the  horses."^ 

The  circumstance  that  a  tenant  stands  in  the  relation  of  an  in- 
dependent contractor  to  his  landlord  and  that,  too,  in  connection 
with  the  demised  premises  is  not  inconsistent  with  a  tenancy.  Thus, 
where  a  tenant  contracted  to  carry  on  a  boarding  house  for  his  land- 
lord, a  railroad  company,  and  to  supply  board  for  the  landlord's  em- 
ployees, the  agreement  was  held  to  create  a  tenancy  because  the  tenant 
was  to  be  in  exclusive  control  and  was  to  pay  a  fixed,  rent.^''*  The  rela- 
tion of  landlord  and  tenant  exists  between  the  parties  by  virtue  of 
such  an  arrangement,  even  though  no  rent  is  charged  by  the  railroad 
lessor.  The  fact  that  the  company  agreed  to  aid  in  collecting  what 
might  be  due  from  time  to  time  from  the  boarders  by  withholding 
moneys  payable  to  them  by  the  company,  did  not  convert  the  lessee 
into  a  servant  of  the  company  or  change  his  relation  to  the  company 
as  tenant  to  the  company's  house.^^^ 

""McGee    v.    Gibson,    1    B.    Men.  i"»  Pelton  v.  Minah  Con.  Min.  Co., 

(Ky.)   105.  11  Mont.  281,  28  Pac.  310. 

"'Butler  v.  Rice,  17  Hun  (N.  Y.)  '"^  Lightbody  v.  Truelsen.  39  Minn. 

409.  310,  40  N.  W.  67. 

«=  Post  v.  Phelan,  3  How.  Pr.  N.  '™  Doyle  v.  Union  Pac.  R.  Co.,  147 

S.  (N.  Y.)  133.  U.  S.  413,  13  Sup.  Ct.  333. 


§    23]  CREATION  OF   THE  RELATION.  28 

A  close  question  arises  in  regard  to  contracts  for  operating  a  mill 
where  the  contractor  is  not  to  pay  rent,  but  agrees  to  manufacture  all 
raw  material  furnished  by  the  owner  at  a  stipulated  price,  to  employ 
operatives  and  to  keep  the  mill  in  good  running  order.  In  one  case 
such  an  agreement  was  held  to  constitute  a  lease,  and  the  landlord  was 
said  to  receive  rent  in  a  lessened  price  for  the  work  of  manufacture. 
Some  of  the  provisions  had  a  double  aspect,  and  consistently  with 
them  there  might  have  been  either  an  agency  or  a  tenancy,  but  there 
were  others  which  admitted  of  only  one  construction.  The  operator 
was  to  repair  the  factory;  he  was  to  have  possession  and  control;  he 
could  select  his  own  servants  and  was  entitled  to  use  the  land  around 
the  factory.  ^^®  The  opposite  view  in  such  case  is  that  there  was  a  mere 
contract  of  hiring  an  independent  contractor  to  operate  a  mill.  In- 
stead of  hiring  men  by  the  day  or  month,  at  fixed  wages,  to  manu- 
facture his  logs  into  shingles,  a  mill  owner  employed  one  man  to  do 
the  whole  work,  paying  him  according  to  the  quantity  and  quality  of 
the  manufactured  product.  He  thereby  relieved  himself  from  all  the 
details  of  the  work  and  at  the  same  time  secured  speed  and  faithful 
work  by  making  the  earnings  depend  on  quantity  and  quality.  The 
provisions  of  the  contract  indicate  very  clearly  that  the  contractor  was 
to  have  the  possession  and  use  of  the  mill  for  the  single  purpose  of 
doing  the  work  of  the  owner.  "That  this  was  strictly  a  contract  for 
the  performance  of  labor  is  evident,"  say  the  court,  "if  we  consider 
who  was  the  owner  of  the  shingles  during  the  process  of  manufacture." 
The  title  to  the  manufactured  product  during  all  stages  remained  in 
the  mill  owner.^^^  Provided  the  agreement  is  put  in  the  form  of  a 
lease,  however,  it  does  not  prevent  the  parties  from  entering  into  the 
relation  of  landlord  and  tenant  that  rent  is  reserved  to  the  landlord 
as  a  certain  part  of  the  manufactured  products. ^''^  So,  where  a  grist 
mill  was  let  for  one-third  the  toll  and  the  tenant  with  his  family 
dwelt  in  the  mill  house,  it  was  held  the  relation  of  landlord  and 
tenant  existed  between  the  parties.^*^^ 

§  23.  Tenant  or  lodger. — It  is  a  general  rule,  universally  recog- 
nized by  decided  cases,  that  a  contract  for  the  letting  of  lodgings  does 
not  create  the  relation  of  landlord  and  tenant  between  the  parties 
thereto.  Although  it  may  be  a  matter  of  doubt  in  special  cases 
whether  the  parties  intend  to  enter  into  an  agreement  for  the  letting 

i*^  Fiske  V.  Framingham  Mfg.  Co.,         "=*  Jolly   v.    Single,    16    Wis.    280; 

14  Pick.  (Mass.)  491.  Walls  v.  Preston,  25  Cal.  59. 

'"Whitney    v.    Clifford,  46    Wis.         ^c'^Fry   v.    Jones,    2   Rawle    (Pa.) 

138.  49  N.  W.  835.  11. 


29  SIMILAR    CONTRACTUAL   RELATIOXS,  [§    24 

of  lodgings  or  for  an  actual  demise,  once  the  nature  of  the  agree- 
ment is  determined,  the  different  results  flowing  from  the  two  con- 
tracts are  well  recognized  and  established.  "Where  one  contracts 
with  the  keeper  of  a  hotel  or  boarding  house  for  rooms  and  board, 
whether  for  a  week  or  a  year,  the  technical  relation  of  landlord  and 
tenant  is  not  created  between  the  parties.  The  lodger  acquires  no  in- 
terest in  the  real  estate.  If  he  is  turned  out  of  the  rooms  before  the 
time  expires,  he  cannot  maintain  ejectment ;  and  while  he  remains,  the 
hotel  keeper  cannot  get  his  pay  by  distraining  for  rent  in  arrear.""" 
"A  lodger  was  never  considered  by  any  one  as  an  occupier  of  an  house. 
It  is  not  the  common  understanding  of  the  word ;  neither  the  house, 
nor  even  any  part  of  it,  can  be  properly  said  to  be  in  the  tenure  or 
occupation  of  the  lodger."^"  ^ 

A  question  as  to  the  nature  of  the  contract  arose  in  regard  to  the 
letting  of  furnished  rooms  which  were  in  charge  of  a  housekeeper 
employed  by  the  owner  of  the  building.  The  rooms  were  daily  cared 
for  and  kept  in  order  by  this  housekeeper;  fires  were  made  and  fuel 
furnished,  as  were,  also,  fresh  water,  towels,  soap  and  other  things 
needed  in  such  apartments;  the  rooms  being  occupied  only  for  sleep- 
ing and  lodging.  The  key  to  the  room  in  question  was  kept  by  the 
woman  in  charge.  The  occupation  under  such  circumstances  did  not 
create  a  tenancy  and  notice  was  not  necessary  to  terminate  it.^'- 

§  24.  An  oral  contract  by  the  keeper  of  a  boarding  house  to  pro- 
vide a  man  and  his  family  for  six  months  with  board  and  with  tliree 
specified  rooms  as  lodgings,  and  to  light  and  heat  the  rooms,  has  been 
held  to  be  not  within  the  statute  of  frauds.  This  was  an  ordinary 
agreement  for  board  and  lodgings  under  which  the  keeper  of  the  lodg- 
ing house  retained  the  legal  possession,  custody  and  care  of  the  entire 
house  and  of  every  room  therein.  The  fact  that  the  rooms  were 
specified  in  the  agreement  gave  the  lodger  no  greater  legal  rights  in 
those  rooms  than  if  they  had  not  been  so  specified.    He  did  not  have 

""Wilson  v.  Martin,  1  Denio    (N.  "^  Per  Lord  Hardwicke  in  Fludier 

Y.)    602,   604,   per   Bronson,   J.     To  v.  Lombe,   Cas.  temp.   Hardw.  307; 

same  effect  see  White  v.  Maynard,  approved  in  Cook  v.  Humber,  11  C. 

Ill  Mass.  250;    Messerly  v.  Mercer,  B.     (N.     S.)     33,     46;     Brewer     v. 

45   Mo.   App.   327;    Wriglit  v.   Stav-  M'Gowen,    L.    R.    5    C.   P.    239;    Mc- 

art,    2   E.    &   E.    721,    105    E.    C.    L.  Dowell   v.    Hyman,    117   Cal.   67,   48 

720;    Smith  v.   St.  Michael,  3   E.  &  Pac.  984. 

E.  383,  107  E.  C.  L.  382;    Stamper  "=  Messerly  v.  Mercer,  45  Mo.  App. 

V.   Sunderland,   L.   R.   3   C.   P.   388;  327. 
Reg.   V.   St.   George's  Union,   L.   R. 
7  Q.  B.  90. 


§    24]  CREATIOX  OF  THE  RELATION.  30 

any  such  exclusive  possession  of  the  rooms  specified  as  would  enable 
him  to  maintain  any  action  founded  on  that  possession.^'^  A  covenant, 
in  a  lease  of  a  coffee-house  in  London,  not  to  lease  or  underlet  the 
premises  or  any  part  thereof,  was  not  broken  by  permitting  a  man  to 
lodge  for  a  year  in  a  particular  room,  "of  which  he  had  exclusive 
possession,"  unless  imder  a  distinct  demise  of  the  room  so  as  to  en- 
able him  to  maintain  trespass. ^^* 

On  the  other  hand,  there  are  decisions  to  the  effect  that  agreements 
to  take  certain  apartments  in  a  house  as  lodgings  at  a  yearly  rent  are 
within  the  statute  of  frauds.^^^  But  there  is  nothing  in  either  of  these 
cases  to  show  that  the  rooms  were  in  a  boarding  house.  And  it  has 
been  suggested  in  commenting  on  them  that  each  appears  to  have  been 
a  case  of  an  agreement  which  if  perfected  by  entry,  would  have 
amounted  to  an  actual  demise  and  would  have  given  the  occupant  all 
the  possessory  rights  of  a  tenant.'^*'  "Flats  are  as  much  separate  dwell- 
ings as  ordinary  adjoining  houses  are.  The  difference  is  that  flats  are 
under  one  roof  and  are  divided  one  from  another  by  a  horizontal  plane, 
but  ordinary  adjoining  houses  by  a  perpendicular  or  vertical  plane."^" 
An  entire  floor,  or  a  series  of  rooms,  or  even  a  single  room,  may 
doubtless  be  let  for  lodgings,  so  separated  from  the  rest  of  the  house 
as  to  become  in  fact  and  in  law  the  separate  tenement  of  the  lessee."^ 

^"  White   V.    Maynard,    111    Mass.  adequate   remedy    in   an   action   on 

250.     The    Illinois    court    discussed  the  contract."    Cochrane  v.   Tuttle, 

such   a  case   in   the   following   Ian-  75  111.  361. 

guage:       "It      is      very      doubtful  ^'^  Doe    v.    Laming,    4    Camp.    73; 

whether    the    relation    of    landlord  Greenslade  v.   Tapscott,   1  C.   M.   & 

and    tenant    existed.     The    arrange-  R.  55,  4  Tyrwh.  566. 

ment  has  more  the   elements  of  a  ^"  Inman  v.   Stamp,   1   Stark.  10; 

simple    contract    than    a    tenancy.  Edge  v.   Strafford,  1  Tyrwh.  293,  1 

What  estate   did   she  have,  accord-  C.  &  J.  391. 

ing  to  her  own  testimony?  She  ^"^  Wright  v.  Stavert,  2  E.  &  E. 
does  not  deny  defendant's  state-  721,  105  E.  C.  L.  720.  In  the  words 
ment,  that  the  distinct  understand-  of  Judge  Gray,  in  White  v.  May- 
ing was,  'His  house  was  to  be  his  nard.  111  Mass.  250,  254. 
house.'  Both  agree  defendant  was  '''McDowell  v.  Hyman,  117  Cal. 
to  have  exclusive  use  of  a  part  of  67,  71,  quoting  from  Stamper  v. 
the  house,  and  it  seems  to  us  the  Sunderland,  L.  R.  3  C.  P.  388,  400. 
true  meaning  of  the  agreement  is,  ^'^  Newman  v.  Anderton,  2  B.  &  P. 
she  was  to  have  the  privilege  of  cer-  N.  R.  224;  Fenn  v.  Grafton,  2  Bing. 
tain  rooms  for  keeping  boarders,  N.  C.  617,  3  Scott  56;  Monks  v. 
besides  defendant's  family,  and  by  Dykes,  4  M.  &  W.  567;  Swain  v. 
no  fair  construction  could  the  con-  Mizner,  8  Gray  (Mass.)  182;  Shum- 
tract  create  any  estate  in  her,  either  way  v.  Collins,  6  Gray  (Mass.)  227; 
at  will  or  for  any  definite  period.  White  v.  Maynard,  111  Mass.  250; 
For  any  breach  she  could  have  an  Porter  v.  Merrill,  124  Mass.  534. 


I 


Gl  SIMILAR    CONTRACTUAL    RELATIONS.  [§    25 

In  such  a  case  it  is  not  conclusive  against  a  tenancy  that  the  landlord 
agrees  to  provide  a  private  table  and  to  render  other  services.  The 
written  contract  in  one  case  purported  to  be  a  lease,  for  a  precise  time 
and  at  a  definite  weekly  rate  of  certain  specific  rooms  so  separated 
from  all  other  rooms  in  the  same  house  as  to  become  the  separate 
tenements  of  the  lessee.  The  fact  that,  besides  leasing  the  rooms,  the 
lessor  undertakes  to  serve  a  private  table,  and  to  furnish  certain  specific 
accommodations,  and  imposes  certain  restrictions  as  to  the  manner 
of  use,  does  not  change  the  essential  character  of  the  instrument.  ^^^ 
Where  the  form  of  the  contract  was  that  of  a  lease  it  was  said  that 
such  an  agreement  would  be  extraordinary  indeed,  in  form,  if  in- 
tended as  the  common  and  usual  contract  for  board  and  lodgings. 
It  gave  different  rights  from  those  belonging  to  an  ordinary  boarder 
and  lodger.  It  entitled  the  tenant  to  exclusive  possession  and  would 
have  justified  him  in  the  use  of  force  to  exclude  any  one  whom  he 
might  choose  to  deem  an  intruder.  This  instrument  divested  the  pro- 
prietor of  the  legal  custody  and  control  of  the  rooms. ^^° 

§  25.  Mortgagor  in  possession. — In  determining  the  exact  status 
of  a  mortgagor  who  is  allowed  to  remain  in  possession  of  the  mort- 
gaged premises  prior  to  a  breach  of  the  condition  of  the  mortgage, 
it  has  been  found  convenient  and  natural  to  liken  him  to  a  tenant 
at  will  to  the  mortgagee.  However,  the  actual  situation  is  that  tlie 
mortgagor  is  entitled  to  destroy  the  estate  granted  to  the  mortgagee 
by  performing  the  condition  of  the  mortgage,  and  that  by  failure 
of  the  mortgagor  to  perform  the  condition  prescribed,  an  indefeasible 
legal  estate  vests  in  the  mortgagee,  subject  only  to  a  right  of  redemp- 
tion in  equity.  Such  rights  and  liabilities  are  foreign  to  the  rela- 
tion of  landlord  and  tenant.  So  that  it  was  aptly  remarked  by  Lord 
Mansfield  that  "A  mortgagor  is  not  properly  a  tenant  at  will  to  the 
mortgagee  for  he  is  not  to  pay  him  rent.  He  is  so  only  quodam 
modo  .  .  .  Where  the  court  or  counsel  call  a  mortgagor  a  tenant 
at  will,  it  is  barely  a  comparison.  He  is  like  a  tenant  at  will."^®^ 
This  was  said  in  regard  to  mortgages  where  the  legal  title  vested  in 
the  mortgagee  and  the  mortgagor  had  merely  a  right  to  defeat  it 
by  performance  according  to  the  tenor  of  the  instrument.  With 
greater  reason  it  follows  that  the  same  is  true  of  a  mortgage 
which  merely  gives  the  mortgagee  a  lien  on  the  property  as  security 

'•"Porter  v.  Merrill,  124  Mass.  534.         '*' Moss   v.    Gallimore.    1    Douglas 

''°  Oliver  v.  Moore,  131  N.  Y.  589,  279,  282;   Birch  v.  Wright.  1  Term. 

42   St.    Rep.   949,   affirming   53    Hun  R.   378,  383;    Vance  v.  Johnson.   10 

472,  25  St.  Rep.  37,  6  N.  Y.  S.  413.  Humph.  (Tenn.)  213,  220. 


§    26]  CREATIOX  OF  THE  RELATION.  32 

for  his  debt;  in  that  case,  also,  the  possession  of  a  mortgagor  is  not 
in  the  capacity  of  tenant  to  his  mortgagee.  "The  relation  of  land- 
lord and  tenant  may  exist  between  mortgagee  and  mortgagor,  or  one 
claiming  under  the  latter,  but  this  relation  is  not  presumed  to  exist 
between  such  parties  and  does  not  grow  out  of  the  relations  of  mort- 
gagor and  mortgagee.  If  between  such  parties  the  relation  of  land- 
lord and  tenant  does  exist,  it  must  be  proved."^'^"  In  case  a  mortgagor 
was  not  a  tenant  during  his  previous  occupation  of  the  premises  he 
does  not  become  one  by  holding  over  after  the  mortgage  has  been 
foreclosed  and  the  property  sold.^^^  It  is  permissible,  however,  for 
a  mortgagor  to  agree  to  become  the  tenant  of  any  purchaser  at  fore- 
closure sale,  and  likewise  it  can  be  stipulated  that  any  purchaser 
shall  become  the  landlord  of  the  mortgagor;  in  such  cases  as  soon 
as  the  other  party  assents  a  tenancy  is  created.^ ^*  Where  the  mort- 
gagor has  put  a  tenant  into  possession  after  the  execution  of  the  mort- 
gage and  the  mortgagee  enters  on  default,  the  acceptance  of  rent 
from  such  tenant  by  the  mortgagee  will  give  rise  to  an  estoppel  and 
create  a  tenancy  from  year  to  year.^®^  Upon  the  entry  of  a  mortgagee 
for  condition  broken  he  has  the  right  to  treat  a  lessee  of  the  mort- 
gagorj  whose  lease  is  subsequent  to  the  mortgage,  as  a  trespasser. 
But  the  acceptance  of  rent  by  a  mortgagee,  after  entry,  from  the 
tenant  of  the  mortgagor  creates  the  relation  of  landlord  and  tenant 
by  the  doctrine  of  estoppel.  The  tenancy  thus  created  will  not  be  for 
the  whole  term  of  the  original  lease  but  from  year  to  year  merely.^^® 
The  question  whether  a  mortgagor  can  be  regarded  as  a  tenant 
of  his  mortgagee  often  arises  in  regard  to  the  mode  of  evicting  him 
from  the  mortgaged  premises.  It  has  been  held  that  summary  pro- 
ceedings under  a  statute  apply  only  to  landlord  and  tenant,  and 
cannot  be  sustained  against  a  mortgagor  who  holds  over  after  a  sale 
of  the  property. 

§  26.     Contracts   for   mortgagee    or    for   letting. — In   many   cases 
where  the  real  nature  of  a  transaction  is  a  mortgage,  the  actual  con- 

"=  Morse  v.  Stafford,  95  Me.  31,  49  566;  and  Thunder  v.  Belcher,  3  East 

Atl.  45.  449.    Contra,   Souders  v.  Vansickle, 

^^  Sawyer  v.  Hanson,  24  Me.  542;  8  N.  J.   L.   313,  where  the  decision 

McMillan  v.  Love,  72  N.  Car.  18.  rested    on   a   statute   abolishing   at- 

"*  Brewster  v.  McNab,  36   S.  Car.  tornment. 
274,  15  S.  E.  233;   Griffith  v.  Brack-         ^'^  Gartside  v.  Outley,  58  111.  210; 

man,  97  Tenn.  387,  37  S.  W.  273.  Doe    v.    Bucknell,    8    C.    &    P.    566; 

"=Gartside  v.  Outley,  58   111.   210,  Thunder  v.  Belcher,  3  East  449. 
citing   Doe  v.   Bucknell,   8   C.   &   P. 


33  SIMILAR   CONTRACTUAL   RELATIONS.  [§    26 

tract  is  disguised  by  collateral  agreements.  Thus  where  an  absolute 
deed  and  a  contract  of  defeasance  or  to  reconvey  were  executed,  and 
the  consideration  was  a  loan  of  money,  the  fact  that  the  grantee 
at  the  same  time  gave  the  grantor  a  lease  of  the  premises  did  not  pre- 
Tent  the  transaction  from  constituting  a  mortgage.^^^  After  a  mort- 
gagee had  commenced  a  suit  of  foreclosure,  he  received  an  absolute 
conveyance  of  the  mortgaged  premises  from  the  mortgagor  and  at  the 
same  time  gave  back  a  lease  of  the  premises  in  which  it  was  stipu- 
lated that  the  lessor  should  at  the  expiration  of  the  lease  sell  the 
premises  to  the  lessee,  in  case  he  should  tender  a  certain  sum — which 
was  the  amount  of  the  mortgage — and  demand  a  deed,  the  transac- 
tion made  the  deed  a  mortgage  and  the  instrument  called  a  lease 
was  not  such  at  all  but  a  contract  of  defeasance.  ^^"^  So  in  another 
case  a  lessee  purchased  part  of  the  demised  premises  but  the  pur- 
chase money  was  in  part  advanced  by  a  third  person  and  the  title 
deed  was  taken  in  his  name.  The  relation  of  landlord  and  tenant 
did  not  arise  between  the  holder  of  the  legal  title  and  the  occupant. 
The  relation  between  the  purchaser  and  the  person  advancing  the 
money  was  similar  to  that  of  mortgagor  and  mortgagee  and  the  former 
tenant  did  not  continue  as  tenant  to  the  transferee  of  the  legal  title.^*^ 
But  where  a  landowner  agreed  in  consideration  of  a  cash  payment  to 
let  to  another  a  parcel  of  land,  and  to  prepare  the  soil  and  sow  it 
with  grain,  authorizing  the  other  to  enter  and  harvest  the  crop,  this 
was  held  to  be  a  lease  and  not  a  mortgage.^"" 

The  maintenance  of  a  suit  in  equity  by  an  occupant  of  premises 
against  the  owner  of  the  fee  to  have  the  latter  declared  a  mortgagee 
rebuts  any  presumption  of  a  tenancy  between  the  parties.  Tliere 
was  a  positive  denial  of  the  absolute  rights  claimed  by  the  holder 
of  the  legal  title  and  an  assertion  that  his  deed  of  title  was  a  mort- 
gage only,  which  the  claimant  was  ready  to  redeem.  So  no  ground 
was  furnished  on  which  to  raise  a  legal  inference  that  the  claimant 
held  the  land  under  the  title  of  his  opponent  and  with  his  con- 
currence and  permission.  Such  are  not  the  facts  and  circumstances 
which  usually  attend  a  permissive  holding,  and  this  is  the  best  test 
by  which  to  try  a  legal  presumption.  They  rather  appear  to  have 
been  inconsistent  with  the  supposed  tenancy.    The  equity  proceeding 

"'  Plato  V.  Roe,  14  Wis.  453.  "°  Mims  v.   Chandler,    21    S.   Car. 

i^Ragan  v.  Simpson,  27  Wis.  355;      480,  493. 
Nightingale  v.  Barens,  47  Wis.  389,        ''^  Stadden   v.    Hazzard,   34    Mich. 
2  N.  W.  767;  Davis  v.  Hemenway,  27     76. 
Vt.  589;    Roach  v.  Cosine,  9  Wend. 
(N.  Y.)   227. 

Jones  L.  &  T.— 3 


§§    2T,    28]  CREATION    OP   THE   RELATION.  C  i- 

had  assumed  for  the  claimant  the  attitude  of  a  mortgagor  offering 
to  redeem  the  mortgaged  premises;  and  he  maintained  himself  in  it 
until  the  close  of  the  controversy.  So  it  was  impossible,  in  the  face 
of  this  fact,  to  infer  the  relation  of  landlord  and  tenant  between 
the  parties  during  that  period.  The  law  sometimes  implies  contracts 
but  never  where  there  is  an  express  contract,  or  facts  exist  wholly 
inconsistent  with  the  contract  to  be  implied.^^^ 

§  27.  A  mortgagee  in  possession  is  not  a  tenant  of  his  mortgagor, 
and  the  latter  cannot  recover  rent  after  redeeming.  Though  a 
mortgagee  has  taken  possession  of  the  mortgaged  premises,  the  mort- 
gagor, after  redeeming,  cannot  maintain  assumpsit  against  the  mort- 
gagee for  rent  during  the  time  he  Avas  in  possession.  If  the  mort- 
gagee in  his  account  of  the  mortgage  debt  credits  nothing  for  the 
rent  during  the  time  he  was  in  possession  and  the  mortgagor  pays 
the  whole  debt  without  deduction,  the  proper  remedy  is  for  the  mort- 
gagor to  maintain  an  action  for  money  had  and  received,  to  recover 
back  the  amount  overpaid. ^^^  But  this  is  not  inconsistent  with  the 
established  rule  that  a  mortgagee  in  possession  is  accountable  for 
profits  which  go  in  reduction  of  the  mortgage  debt."^  In  case  a 
valid  lease  is  made  by  the  mortgagor  and  the  mortgagee  acquires 
possession  as  assignee  of  such  lease,  he  then  becomes  a  tenant  of  the 
mortgagor.  But  if  the  mortgagor  puts  the  mortgagee  in  actual  pos- 
session and  occupation  of  the  premises,  and  relinquishes  all  right 
whatever  to  them,  and  his  tenant  stands  by  and  consents,  he  can 
hardly  be  heard  after  this  to  say  that  the  term  still  continues  and  the 
mortgagee  holds  as  tenant.  Neither  can  an  assignee  of  the  mortgagor 
set  up  such  a  claim.  The  mortgagee  goes  into  possession  as  mort- 
gagee and  not  as  tenant,  by  a  title  paramount  to  that  of  the  mort- 
gagor. There  is  no  pretense  that  he  took  an  assignment  of  the  term 
or  an  underlease  of  the  premises. ^^* 

§  28.  Tenancy  between  joint  owners. — The  general  rule  in  regard 
to  the  rights  of  possession  by  owners  of  undivided  interests  in  real 
estate,  is  that  no  one  of  them  has  the  right  to  keep  the  others  out  of 
any  part  of  the  common  estate.  Consequently  one  joint  owner  can- 
not bring  trespass  or  ejectment  against  a  co-owner.    Not  only  is  this 

"' Stockett  V.  Watkins,  2  Gill  &  J.  171;    Ackerman  v.   Lyman    20   Wis. 

(Md.)  326,  341.  454;    Jones   on    Mortgages,    6th   ed., 

^°='Wood  V.  Felton,  9  Pick.  (Mass.)  §  1114  et  seq. 

171.  "*  People   V.   Culver,   21   How.   Pr. 

"'Wood  V.  Felton,  9  Pick.  (Mass.)  (N.  Y.)  108. 


35  PURCHASER    IN   POSSESSION.  [§    29 

the  rule,  but  such  an  owner  is  further  precluded  from  charging  one 
in  possession  of  the  entire  premises  as  tenant  and  holding  him  for 
rent.  "The  relation  of  landlord  and  tenant  does  not  exist  between 
one  tenant  in  common  and  the  other  tenants  in  common  where  the  one 
occupies  the  common  estate  in  his  own  right  and  without  contract, 
express  or  implied,  with  his  co-tenants."^" ^  Mere  occupancy  of  the  en- 
tire tenement  by  one  co-tenant  does  not  make  him  liable  for  rent  to 
the  other. ^"^  The  relation  of  landlord  and  tenant  may,  however,  be 
created  between  co-tenants  by  an  actual  agreement  to  that  effect  be- 
tween them,^''^  and  when  the  relation  of  landlord  and  tenant  is  thus 
created,  the  tenant  co-owner,  if  he  remain  in  exclusive  possession 
after  the  term  for  which  his  co-tenant's  share  was  let  to  him,  will  be 
held  to  do  so  in  his  character  of  tenant,  and  the  same  rules  will  apply 
as  in  the  case  of  any  other  tenant  holding  over.^"^  Thus  an  actual 
agreement  to  pay  rent  was  implied  between  co-tenants  where  there 
had  been  a  previous  renting  and  an  arrangement  for  partition  was 
delayed  so  that  one  continued  in  occupation  of  tlie  entire  estate.^®^ 

VI.    Purchaser  in  Possession. 

§  29.  The  occupation  of  land  under  a  contract  for  purchase  does 
not  make  the  occupant  a  tenant  of  the  grantor  during  the  time  al- 
lowed for  the  completion  of  the  purchase  even  though  the  contract 
for  sale  is  not  carried  out.  Therefore,  no  promise  to  pay  rent  for 
the  use  of  the  premises  during  such  period  will  be  implied,  and  the 
statutory  process  for  a  landlord  to  recover  possession  cannot  be  main- 
tained.-°"    "W^liile  the   defendant   occupied   under   a   valid   contract 

"'> Bird  v.  Earle,  15  Pla.  447,  453.  Storrs,      3      Conn.      203.       Georgia: 

^"''Chapin  v.  Foss,  75  111.  280;  Bo-  Barnes  v.  Shinholster,  14  Ga.  131; 
ley    V.    Barutio,    24    111.    App.    515;   ■  Griffith  v.  Collins,  116  Ga.  420,  42  S. 

Huffman  v.  Pollard,  6  Ky.  L.  R.  519.  E.  743.     Indiana:   Newby  v.  Vestal, 

^"  Shouse  v.  Krusor,  24  Mo.  App.  6  Ind.  412;   Miles  v.  Elkin,  10  Ind. 

279;     Hubbard    v.    Quisenberry,    32  329;   Kratemayer  v.  Brink,  17   Ind. 

Mo.  App.  459.  509;   Fall  v.  Hazelrigg,  45  Ind.  576. 

"'O'Connor  v.  Delaney,  53  Minn.  Kansas:    Garvin    v.    Jennerson,    20 

247,  54  N.  W.  1108;  Chapin  v.  Foss,  Kan.     371.      Kentucky:    Richmond 

75  111.  280.  &c.   Tp.  Co.  v.  Rogers,  7  Bush  532. 

""Leitch  v.  Boyington,  84  111.  179.  Maine:   Lapham   v.   Norton,   71    Me. 

=°'' Alabama:   Tucker  v.  Adams,  52  83.     Maryland:   Hoffar  v.  Dement,  5 

Ala.      254.      Arkansas:    Walters     v.  Gill    132.      Massachusetts:    Dunham 

Meyer,   39  Ark.   560;    Mason   v.   De-  v.    Townsend,    110    Mass.    440.     Mis- 

lancy,     44     Ark.     444.      California:  souri:   Glascock  v.  Robards.   14  Mo. 

Blum  V.  Robertson,  24  Cal.  127,  145.  350.      New    Jersey:    Den    v.    "West- 

Connecticut:    Vandenheuvel   v.  brook,  15  N.  J.  L.  371;    Brewer  v. 


§29] 


CREATION  OF  THE  RELATION. 


36 


for  the  sale  of  the  property  to  him,  he  could  not  be  considered  as  a 
tenant;  the  parties  could  not  convert  the  contract  for  purchase  into 
a  tenancy,  nor  while  the  former  was  pending  infer  another  of  a 
different  nature/'^"^  The  relation  of  landlord  and  tenant  subsists 
by  virtue  of  an  agreement,  express  or  implied.  The  relation  of  vendor 
and  vendee  is  wholly  different  in  its  incidents  and  in  the  rights 
and  liabilities  of  the  parties.  If  the  vendor  has  parted  with  the  legal 
title,  the  vendee  could  not  by  any  possibility  be  treated  as  his  tenant. 
If  he  has  not  parted  with  the  legal  title,  treating  the  vendee  as  his 
tenant,  liable  for  rent,  would  operate  as  a  destruction  of  the  con- 
tract of  purchase  and  the  substitution  of  a  different  contract  the 
parties  did  not  make.  Nor  can  it  be  said  that  the  vendor,  because 
of  the  vendee's  default  in  payment  of  the  purchase  money,  has  an 
election  to  rescind  the  contract  of  purchase  and  treat  the  vendee  as 
a  tenant.  It  requires  the  concurring  minds  of  both  parties  to  rescind 
as  well  as  to  make  a  contract.-"^  The  vendor  has  three  remedies, — 
he  may  maintain  ejectment,  sue  at  law  for  the  purchase  money,  or 
enforce  his  lien  for  the  purchase  money  in  equity. -°^ 

Where  an  occupant  of  land  had  agreed  to  purchase  it  and  had  paid 
the  purchase  money,  it  was  declared  to  be  manifestly  unjust  to  allow 
the  owner  to  recover  rent  for  it  in  the  event  of  his  failure  to  execute 
a  conveyance.^"*  But  in  the  event  of  the  recovery  back  of  the  pur- 
chase money  because  of  the  destruction  of  the  premises  by  fire,  the 
vendor  was  allowed  to  recover  rent  for  the  time  the  vendee  was  in 
occupation.^"^ 


Craig,  18  N.  J.  L.  214.  New  York: 
Jackson  v.  Kingsley,  17  Johns.  158; 
Kellogg  v,  Kellogg,  6  Barb.  116; 
Burkhart  v.  Tucker,  27  Misc.  724,  59 
N.  Y.  711;  Moulton  v.  Norton,  5 
Barb.  286;  People  v.  Bigelow,  11 
How.  Pr.  84;  Kenada  v.  Gardner,  3 
Barb.  589;  Livingston  v.  Tanner,  14 
N.  Y.  64;  Oakley  v.  Schoonmaker,  15 
Wend.  226.  North  Carolina:  Riley 
v.  Jordan,  75  N.  Car.  180;  McCombs 
V.  Wallace,  66  N.  Car.  481.  Penn- 
sylvania: Hill  V.  Hill,  43  Pa.  St.  528. 
Tennessee:  Chilton  v.  Niblett,  3 
Humph.  404;  Gudger  v.  Barnes,  4 
Heisk.  570.  Texas:  Brown  v.  En- 
gel,  2  Tex.  App.  Cas.,  §  103.  Wis- 
consin: Nightingale  v.  Baren,  47 
Wis.    389,    2   N.   W.    767;    Diggle  v. 


Boulden,  48  Wis.  477,  485,  4  N.  W. 
678;  McCormick  v.  Herndon,  86  Wis. 
449,  56  N.  W.  1097.  England: 
Kirtland  v.  Pounsett,  2  Taunt.  145. 

="'  Howard  v.  Shaw,  8  M.  &  W. 
118-122,  per  Abinger,  C.  B. 

=°' Tucker  v.  Adams,  52  Ala.  254. 

=°^  Haley  v.  Bennett,  5  Port.  (Ala.) 
452;  Duval  v.  McLoskey,  1  Ala.  708. 

=«  Little  v.  Pearson,  7  Pick. 
(Mass.)  301. 

"^^  Gould  V.  Thompson,  4  Met. 
(Mass.)  224.  Here  the  court  dealt 
with  a  case  where  the  vendee  had 
paid  the  purchase  money  without 
getting  a  conveyance,  had  occupied 
the  premises  for  four  days  when 
they  burned,  and  had  then  recov- 
ered back  the  purchase  money.     It 


37  PURCHASER  IN  POSSESSION.  [§    30 

When  one  purchases  land  or  makes  an  agreement  to  do  so,  and 
enters  into  possession  in  pursuance  of  the  agreement,  his  entry  and 
possession  are  not  as  tenant,  but  as  owner.  If  the  defendant  shows  he 
is  in  under  a  contract  to  purchase  he  rebuts  the  idea  of  a  tenancy, 
and  a  different  agreement  cannot  be  inferred  from  that  the  parties 
have  deliberately  entered  into.  The  fact  that  the  agreement  to  pur- 
chase is  by  parol  can  make  no  difference.  The  agreement  is  proved 
not  for  the  purpose  of  being  enforced,  but  only  to  rebut  the  idea  of  a 
tenancy.^"®  A  purchaser  entered  under  a  parol  agreement  for  pur- 
chase and  occupied  ten  years,  making  extensive  improvements, 
but  the  contract  had  not  been  carried  out.  He  was  not  liable  to  the 
owner  in  use  and  occupation  during  this  period.  There  was  no  agree- 
ment to  pay  rent,  and  from  the  facts  it  could  be  inferred  that  the 
parties  did  not  contemplate  the  payment  of  rent.  There  seems  to 
have  been  no  demand  on  the  purchaser  to  complete  his  purchase.-"^ 

While  it  seems  to  be  well  settled  that  a  person  is  not  liable  for  rent, 
where  he  has  taken  the  possession  and  occupied  the  premises  under 
a  contract  of  purchase,  such  rule  only  prevails  where  the  contract  is 
not  absolutely  null  and  void.  If  the  grantor  has  no  power  to  make 
an  executory  contract  for  the  sale  of  the  premises,  or  to  convey  any 
title  thereto,  the  entire  transaction  is  absolutely  and  unconditionally 
null  and  void.  "The  parties  to  the  pretended  contract  are  to  be 
charged  with  a  knowledge  of  the  law  and,  consequently,  it  is  to  be 
presumed  that  the  vendee  took  the  possession  and  occupied  the  prem- 
ises with  full  knowledge  that  the  entire  transaction  was  illegal  and 
void."  So  the  court  were  clearly  of  opinion  that  the  vendee  was 
liable  for  the  use  and  occupation  of  the  premises.-"^ 

§  30.  In  the  absence  of  a^eement  a  purchaser's  right  to  possession 
is  not  greater  than  that  of  a  tenant  at  will.  In  describing  the  inter- 
est of  an  intending  purchaser  in  possession  under  an  agreement  for  a 
sale  it  is  not  unusual  to  speak  of  him  as  a  tenant  at  will  of  the  ven- 
dor.'^*^   No  demise  is  created  by  such  a  contract,  and  the  possession  is 

was  held  that  he  was  liable  to  pay  payment  of  rent  was  necessary  to 

rent  for  the  four  days'  occupation.  create  the  relation  of  landlord  and 

="«  Mason  v.  Delancy,  44  Ark.  444;  tenant. 

Carpenter  v.  United  States,  17  Wall.  *'  Bishop  v.  Clark,  82  Me.  532,  20 

(U.    S.)    489.     On   similar    facts   in  Atl.  88. 

Moshier  v.  Reding,  12  Me.  478,  482,  "■"'  Mattox  v.  Hightshue,  39  Ind.  95. 

the    court    held    that    there    was    a  =""  McCombs  v.  Wallace,  66  N.  Car. 

tenancy  between  vendor  and  vendee,  481;   Towne  v.  Butterfield,  97  Mass. 

relying  on  the  negative  reasons  that  105;     Meadows    v.    Hopkins,    Meigs 

neither  express  words  of  demise  nor  (Tenn.)    181;    Chilton  v.  Niblett,  3 


§    30]  CREATIOX  OF  THE  RELATIOX.  38 

held  only  b}^  permission  of  the  owner.  There  is  no  title  by  which  the 
purchaser  can  hold  against  the  owner  for  any  fixed  or  definite  length 
of  time.  He  is,  therefore,  la  mere  tenant  at  will,^^**  in  contradistinc- 
tion from  one  who  has  a  fixed  right  of  possession  or  term  in  the  land. 
But  it  has  been  explained  that  though  such  a  purchaser's  right  is  not 
greater  than  that  of  a  tenant  at  will,  and  though  he  is  therefore  often 
called  a  tenant  at  will,  yet  he  is  not  to  be  regarded  as  a  lessee  for  all 
purposes,  and  that,  if  the  negotiation  for  the  purchase  of  the  land 
fails,  he  is  not  necessarily  to  be  held  liable  on  an  implied  assumpsit 
for  use  and  occupation,  or  liable  to  the  special  summary  process  pro- 
vided by  statute  for  the  recovery  of  land  which  is  held  over  by  a  lessee 
after  the  term  of  his  lease.^"  To  designate  a  purchaser  in  possession 
a  tenant  at  will  is  true  in  a  restricted  sense  only.  A  purchaser  is  a 
tenant  at  will  just  as  a  mortgagor  after  condition  broken  is  a 
tenant  at  will  of  the  mortgagee.  The  mortgagor  is  not  a  tenant  within 
the  meaning  of  the  unlawful  detainer  act,  however,  and  neither  is  a 
purchaser  who  has  been  placed  in  possession  before  a  transfer  of  the 
legal  title.212 

From  the  time  of  default  in  the  contract  for  sale,  the  relation  of 
the  parties  becomes  that  of  landlord  and  tenant  at  will  or  at  suffer- 
ance ;^^^  and  it  has  been  held  that,  after  such  default,  an  implied 
promise  on  the  part  of  the  occupant  to  pay  rent  will  arise :  "But  what 
is  the  relation  of  the  parties,"  asks  Lord  Abinger,  "when  the  contract 
of  sale  has  gone  off?  The  defendant  remains  in  possession  with  the 
consent  of  the  landlord,  but  without  any  title  to  or  contract  to  pur- 
chase the  land  itself.  Under  those  circumstances,  he  is  a  tenant  at 
will;  and  if  the  occupation  is  beneficial  to  him,  that  is  sufficient  to 
imply  a  contract  to  pay  a  reasonable  sum  by  way  of  compensation  for 
such  occupation."^  ^*  If  the  vendee  refuses  to  comply  with  the  con- 
tract, the  vendor  may  treat  him  as  a  tenant  at  will,  and  the  vendee 
thereby  becomes  liable  to  the  vendor  for  the  reasonable  value  of  the 

Humph.  (Tenn.)  404;  James  v.  Pat-  ^' Lyon  v.  Cunningham,  136  Mass. 

terson,  1  Swan  (Tenn.)  309;  Doe  v.  532;  Dakin  v.  Allen,  8  Cush.  (Mass.) 

Chamberlaine,  5  M.  &  W.  14;    Doe  33;     Larned     v.     Clarke,     8     Cush. 

V.  Miller,  5  C.  &  P.  595.  (Mass.)    29;    Dunham  v.  Townsend, 

-^^  Foley      V.      Wyeth,      2      Allen  110  Mass.  440;  Kiernan  v.  Linnehan, 

(Mass.)    131,    134,    per    Merrick,    J.  151  Mass.  543,  24  N.  E.  907. 

There    is   an    early   dictum   that   a  -"  Mason  v.  Delancy,  44  Ark.  444. 

vendee   in   possession  with   a  bond  ^"  Uhl  v.  Pence,  11  Neb.  316,  9  N. 

for  title  had  an  estate  at  will  or  by  W.  41. 

license.  Proprietors  of  No.  6  v.  '^*  Howard  v.  Shaw,  8  M.  &  W.  118. 
McFarland,  12  Mass.  324. 


39  PURCHASER    IN    POSSESSION.  [§    31 

-use  of  the  premises  for  the  time  during  which  he  continues  in  posses- 
sion after  he  abandons  the  agreement.^^^ 

Moreover,  it  is  valid  and  enforcible  to  regulate  the  rights  of  a  pur- 
chaser to  possession  prior  to  the  transfer  of  the  legal  title,  and  where 
it  is  contemplated  that  the  deed  may  not  be  called  for  until  after  the 
expiration  of  months  or  even  years,  this  is  a  natural  and  wise  precau- 
tion. In  a  case  where  this  question  arose  it  was  held  the  agreement 
not  only  regulated  the  terms  of  the  sale,  but  also  fixed  the  rights  of 
the  parties  as  to  possession  during  the  continuance  of  the  agreement, 
and  that  the  language  was  sufficiently  clear  and  precise  to  give  the 
Tight  of  possession  to  the  vendee.  In  construing  the  sealed  instru- 
ment by  which  this  right  was  conferred,  Hammond,  J.,  speaking  for 
the  court,  said:  "It  is  not  simply  an  executory  promise  to  give  pos- 
session, but  it  is  a  present  grant  to  the  plaintiff  of  the  possession,  to 
continue  during  the  existence  of  the  agreement.  The  right  given  is 
not  an  estate  at  will,  but  a  much  greater  estate,  and  until  it  is  lost 
by  the  default  of  the  plaintiff,  or  by  the  expiration  or  annulment  of 
the  agreement  by  lapse  of  reasonable  time  or  otherwise,  she  will  con- 
tinue to  hold  it.  .  .  .  By  the  fair  interpretation  of  the  agreement, 
the  plaintiff  was  entitled  to  reap  the  profits  of  the  income  of  the 
estate  either  by  personal  occupation,  or  by  leasing  the  same  to  an- 
other.''2i6 

§  31.  Modifying  circumstances. — When  a  purchaser  goes  into  oc- 
cupation of  land  before  the  sale  is  completed  by  a  transfer  of  the 
legal  title,  the  generally  accepted  principle  is  that  such  occupant  does 
not  stand  in  the  relation  of  a  tenant  to  the  vendor.  The  principle  is 
equally  applicable  where  the  prospective  purchaser  has  been  tenant  of 
the  land  just  previous  to  the  time  when  the  contract  for  sale  is  to  be 
carried  out;^"  and  where  the  vendor  makes  a  valid  transfer  of  his  title 
to  a  third  party.  The  vendee  does  not  thereby  become  a  tenant  to  the 
person  acquiring  the  legal  title  by  such  transfer.^^  Moreover,  it 
does  not  alter  the  relation  of  the  parties  for  them  to  call  tlie  purchase 
money  rent.^^®     If  the  agreement  contemplated  an  absolute  sale,  the 

^"Sievers  v.  Brown,  34  Ore.  454,  (N.  Y.)  375.  Compare  Moore  v. 
56  Pac.  171;  Smith  v.  Wooding,  20  Smith,  56  N.  J.  L.  446,  29  Atl.  159. 
Ala.  324;  Osgood  v.  Dewey,  13  where  a  vendee  under  such  circum- 
Johns.  (N.  Y.)  240;  Dwight  v.  Cut-  stances  was  called  a  tenant  at  sut- 
ler, 3  Mich.  566,  64  Am.  Dec.  105;  ferance. 
Hogsett  v.  Ellis,  17  Mich.  351.  ="  Johnson  v.  Hauser,   82  N.  Car. 


="  Fitch    V.    Windram,    184    Mass. 


375. 


•68,  67  N.  E.  965.  *"*  Quertermous     v.     Hatfield,     54 

''"Arey  v.  Imson,  3  Alb.  L.  Jour.     Ark.  16,  14  S.  W.  1096;   Watson  v. 


§'   32]  CREATION  OF  THE  RELATION.  40 

fact  that  the  first  installment  of  purchase  money  was  called  rent  by 
the  parties  would  not  impart  a  different  condition  into  the  contract 
and  change  the  relation  of  vendor  and  vendee  into  that  of  landlord 
and  tenant.  Calling  the  purchase  money  rent  would  not  make  it 
such."o  The  fact  that  a  note  recited  that  it  was  given  for  rent 
would  not  preclude  the  parties  from  proving  that  it  was  not  in  fact 
given  for  that  purpose."^  However,  if  the  money  is  paid  as  rent  the 
relation  of  landlord  and  tenant  will  arise  even  though  the  amounts 
paid  are  to  be  credited  on  a  purchase  note  on  a  certain  contingency,^^'^ 
or  are  called  interest  on  a  bond  securing  the  purchase  price  which  is- 
to  be  paid  by  the  tenant,^^^ 

It  is  admissible  to  show,  on  behalf  of  a  person  attaching  for  rent,, 
that  originally  there  was  a  contract  for  the  sale  of  the  premises,  but 
that  before  other  rights  accrued  this  was  modified  by  an  agreement 
that  the  vendee,  in  default  of  paying  the  purchase  money,  should  pay 
rent.2^*  After  default  by  a  vendee  of  land  to  pay  the  purchase  money,, 
the  vendor  may,  by  contract,  become  landlord  of  the  vendee  so  as  to 
avail  himself  of  the  landlord's  lien  given  by  statute,  and  the  rent 
may  still  go  as  a  credit  upon  the  purchase  price  agreed  to  be  paid  for 
the  land.^^^  Such  a  change  in  the  relationship  could  not  be  effected 
to  the  detriment  of  third  persons;  as  where  a  landlord  asserting  a 
lien  comes  into  competition  with  a  mortgagee  of  the  tenant's  crop. 
The  landlord  would  be  postponed  if,  at  the  time  the  mortgagee's  rights 
attached,  he  stood  in  the  relation  of  vendor  to  the  occupant  who  sub- 
sequently became  his  tenant.^"*' 

§  32.     That  a  vendee  in  possession  is  entitled  to  emblements  was 

the  conclusion  reached  by  the  New  York  Court  of  Appeals  in  an 
elaborately  considered  case.  The  decision  of  the  Supreme  Court  be- 
low was  reversed  by  this  holding.  The  action  was  in  the  nature  of 
replevin  to  recover  a  crop  of  oats  planted  by  the  vendee  while  in  pos- 
session, and  subsequently  harvested  by  the  vendor.  As  a  ground  for 
sustaining  a  non-suit  the  Supreme  Court  said:    "The  contract  for 

Pugh,   51  Ark.   218,   10   S.   W.   493;  -^  White  v.   Livingston,   10   Cush. 

Blitch  V.  Edwards,  96  Ga.  606,  24  S.  (Mass.)  259. 

E.     147;     Sackett    v.     Barnum,     22  -^Spears    v.    Robinson,    71    Miss. 

Wend.  (N.  Y.)  605.  774,  15  So.  Ill;  Thornton  v.  Strauss, 

-"  Quertermous     v.     Hatfield,     54  79  Ala.  164. 

Ark.  16,  14  S.  W.  1096.  ^^  Jones  v.  Jones,  117  N.  Car.  254, 

=^  Watson  v.  Pugh,  51  Ark.  218,  10  23  S.  E.  214. 

S.  W.  493.  ""  Wilczinski  v.  Lick,  68  Miss.  596, 

^=  Nobles    v.    McCarty,    61    Miss.  10  So.  73- 
456. 


41  PURCHASER    IX    POSSESSION".  [§    SZ 

the  sale  of  the  farm  being  by  parol,  was  void  by  the  statute.  There 
was  no  contract  for  the  letting  of  the  farm  and  the  relation  of  land- 
lord and  tenant  did  not  exist.  ,  .  .  There  are  some  dicta  to  the 
effect  that  an  entry  upon  premises,  under  a  parol  contract  to  purchase, 
and  an  occupancy  will  establish  the  relation  of  landlord  and  tenant 
and  that  a  recovery  for  use  and  occupation  can  be  had,  and  there  are 
some  cases  in  which  the  action  has  been  maintained.  It  will,  how- 
ever, be  found  on  examining  the  cases,  that  the  occupancy  has  been, 
continued  after  the  parties  had  abandoned  the  contract  to  purchase, 
or  there  have  been  circumstances  from  which  an  inference  could  be 
fairly  drawn  that  the  parties  had  agreed  that  rent  should  be  paid.'* 
The  oats  while  growing  were  a  part  of  the  realty ;  the  remedy  of 
the  party  disseised  is  to  recover  the  possession  and  then  the  mesne 
profits.  In  this  case,  however,  the  vendee  had  no  legal  title.  His  rem- 
edy was  in  a  court  of  equity  for  a  specific  performance.--^  The 
ground  on  which  this  decision  was  reversed  was  that  the  vendee  in. 
possession  was  a  tenant  at  will,  and  therefore  entitled  to  the  oats  as 
emblements.  A  promise  to  pay  rent  could  not  be  implied  in  such  a 
case,  because  the  vendee  entered  under  a  different  contract,  but,  never- 
theless, he  was  a  tenant  at  will.  One  of  the  arguments  in  favor  of  this 
conclusion  was  that  a  vendee  in  such  a  position  has  the  right  to  in- 
gress and  egress  to  remove  his  effects.--^  Expressions  to  be  found  in 
the  authorities  to  the  effect  that  one  entering  under  a  contract  of 
purchase  does  not  stand  in  the  relation  of  tenant  to  the  vendor,  have 
reference  to  the  question  whether  an  undertaking  to  pay  rent  can  be 
implied.  In  a  further  statement  of  the  reasons  for  the  decision, 
Rapallo,  J.,  speaking  for  himself  and  two  other  members  of  the  court, 
said :  "But  when  a  purchaser  of  a  farm  enters  upon  it  under  an  ex- 
press agreement  of  the  vendor  that  he  may  occupy  and  work  it  until 
the  vendor  is  prepared  to  convey,  and  the  agreement  to  sell  is  merely 
by  parol,  and  the  question  arises  with  reference  to  the  rights  of  such 
an  occupant,  in  case  of  a  refusal  by  the  vendor  to  perform,  and  a 
termination  by  him  of  the  occupancy,  without  any  default  on  the  part 
of  the  occupant,  there  is  strong  reason  for  according  to  such  occu- 
pant the  rights  of  a  tenant  at  will.  The  permission  to  occupy  un- 
accompanied by  any  contract  of  sale  would  clearly  create  a  ten- 
ancy at  will.  The  effect  of  the  invalidity  of  the  contract  of  sale 
is  to  reduce  the  right  of  the  vendee  to  that  of  a  mere  licensee,  and  to 

==' Harris   v.    Frink,    2    Lans.    (N.  Rich.   L.    (S.   Car.)    542;    Carson  v. 

Y.)  35.  Baiter,  4  Dev.  (N.  Car.)  220;  Lowry 

^'Love  v.  Edmonston,  1  Ired.  L.  v.    Tew,    3    Barb.   Ch.    (N.   Y.)    407, 

(N.   Car.)    152;    Jones  v.   Jones,    2  414. 


§    33]  CREATIOX  OF  THE   RELATION.  43 

enable  the  vendor  to  revoke  the  license  at  his  pleasure.  AVhen  he  ex- 
ercises that  right  there  is  no  injustice  in  placing  him  in  the  same  po- 
sition as  if  the  contract  of  sale  which  he  repudiates  had  not  been 
made.""^ 

§  33.  Where  a  vendor  of  land  continues  in  possession,  either  by  an 
agreement  in  the  contract  of  sale  or  collateral  thereto,  his  right  usu- 
ally takes  effect  as  a  reservation,  and  in  that  case  the  relation  of  land- 
lord and  tenant  does  not  exist  between  the  parties.^^"  However,  the 
parties  may,  if  they  wish,  deliver  the  possession  of  the  premises  to 
the  grantee  and  have  him  lease  them  back  to  the  grantor  and,  if  that 
is  done,  the  relation  of  landlord  and  tenant  would  exist  between 
them ;  and  unlawful  detainer  would  lie  against  the  grantor  in  case  he 
refused  to  deliver  up  the  possession  according  to  his  agreement.  The 
same  arrangement  could  be  made  in  a  mortgage,  and  the  existence 
of  a  tenancy  would  in  no  way  impair  the  grantor's  right  of  redemp- 
tion.-^^ After  a  delivery  of  possession  to  a  vendee,  the  premises 
were,  in  one  case,  returned  to  the  vendor  under  the  mistaken  belief 
that  a  suit  for  specific  performance  to  compel  a  conveyance  could  not 
be  maintained,  "\^^len  the  equity  suit  was  finally  decided  against  the 
vendor  it  was  held  that  a  sub-vendee  of  the  premises  could  maintain 
an  action  for  use  and  occupation  against  the  vendor  for  such  time  as 
he  had  occupied  after  the  execution  of  the  contract  for  sale.  Baron 
Graham  said  in  the  course  of  his  concurring  opinion :  "Although  in 
raising  an  implied  assumpsit,  however,  we  may  or  may  not  be  doing 
what  was  not  in  the  contemplation  of  the  parties  at  the  moment,  that 
should  not  be  the  only  consideration  with  us  in  determining  whether 
this  species  of  action  can  be  maintained  or  not."  The  action  of  use 
and  occupation  being  the  only  remedy  available  against  the  vendor, 
the  court  were  inclined  to  a  liberal  construction  for  the  purpose  of 
holding  the  vendor  liable.-^^ 

After  the  period  for  which  the  vendor  was  to  occupy  has  elapsed, 
he  becomes  a  tenant  at  will  or  at  sufferance.-^ ^ 

^  Harris  v.   Frink,   49   N.   Y.    24,  "■"■  Hull  v.  Vaughan,  6  Price  157. 

10  Am.  R.  318,  reversing  2  Lans.  35.  ^^  Hyatt  v.  Wood,  4  Johns.  (N.  Y.) 

"°  Goldsberry  v.  Bishop,  2  Duv.  150;  Cadwallader  v.  Lovece,  10  Tex. 
(Ky.)  143;  Hoffman  v.  Clark,  63  Civ.  App.  1,  29  S.  W.  666,  917.  Corn- 
Mich.  175,  29  N.  W.  695;  Sims  v.  pare  Jackson  v.  Aldrich,  13  Johns. 
Humphrey,  4  Denio  (N.  Y.)  185;  (N.  Y.)  106,  holding  a  second  con- 
McCombs  V.  Wallace,  66  N.  Car.  veyance  cut  off  the  right  of  posses- 
481.  sion    of   the    original    vendor,    whO 

=^»  Sexton    v.    Hull,    45    Mo.    App.  held  as  tenant  at  will. 
339.     Compare   Prichard   v.    Tabor, 
104  Ga.  64,  30  S.  E.  415. 


43  PURCHASER    IN    POSSESSIOX.  [§    34 

§  34.  The  character  of  an  occupancy  may  be  determined  by  a  con- 
dition subsequent;  so  that  the  happening  of  a  future  event  will  de- 
termine whether  the  occupant  of  land  holds  in  the  capacity  of  a  ten- 
ant or  as  a  purchaser.-^*  An  election  may  be  given  one  party  to  choose 
whether  the  relationship  shall  be  that  of  landlord  and  tenant  or  of 
vendor  and  vendee.^^^  On  a  contract  for  the  sale  of  lands,  the  parties 
may,  by  express  stipulation,  agree  that  on  default  lacing  made  in  the 
payment  of  the  purchase  money,  the  contract  shall  be  treated  as  a 
lease,  the  option  being  reserved  to  the  purchaser  in  the  first  instance, 
and  passing  to  the  vendor  on  his  failure  to  elect.  When  an  election 
is  made  to  treat  it  as  a  lease,  it  relates  back  to  the  time  when  the 
contract  was  made,  and  creates  the  relation  of  landlord  and  tenant 
from  that  day  with  all  its  incidents. -^*^ 

On  the  other  hand,  where  land  has  been  leased  for  a  year  with  an 
option  to  lessee  to  purchase  at  any  time,  the  lease  is  terminated  as 
soon  as  the  tenant  exercises  his  option  to  buy,  and  he  can  then  enforce 
specific  performance.^^^  Under  a  lease  containing  an  option  to  pur- 
chase, the  relation  of  lessor  and  lessee  and  the  liability  of  the  lessee 
for  rent  continues  until  a  tender  or  offer  to  pay  the  purchase  money 
is  made.^^^  Where  a  lease  gave  the  tenant  an  option  to  purchase  a 
part  of  the  land  occupied  at  the  end  of  the  tenancy,  price  and  bound- 
ary to  be  agreed  upon  later,  it  was  held  that  the  relation  of  landlord 
and  tenant  existed  and  title  was  not  vested  in  lessee.^ ^® 

The  existence  of  an  option  in  one  party  to  a  contract  does  not  in- 

^  Arkansas:     Block  v.   Smith,   61  would    seem    that    the    contingency 

Ark.  266,  32  S.  W.  1070.   Mississippi:  had  happened  here  which  made  the 

Bacon  v.  Howell,  60  Miss.  362;  Vick  occupant  a  tenant   and   not  a   pur- 

V.  Ayres,   56   Miss.  670;    Stinson  v.  chaser.     Compare   Hodgen    v.    Gut- 

Dousman,     20    How.     (U.    S.)     461.  tery,  58  111.  431. 

Florida:     Blanchard    v.    Raines,    20  ='=  Wilkinson    v.    Ropes,     74     Ala, 

Fla.  467.    Georgia:     Barnes  v.  Shin-  140;    Collins   v.    Whigham,    58    Ala. 

holster,  14  Ga.  131.   North  Carolina:  438;    Dunn    v.    Tillery,    79    N.    Car. 

Hughes  V.   Mason,   84   N.   Car.    472,  497. 

holding    the    contingency    had    not  ="' Drum  v.  Harrison,  83  Ala.  388. 

happened.   In  Green  v.  Dietrich,  114  3  So.  769;   Collins  v.  Whigham,  58 

111.  636,  a  person  was  in  possession  Ala.  438. 

of   land    under   a    contract   to   buy  ="' Newell's    Appeal.    100    Pa.    St 

and  agreed  to  pay  reasonable  rent  513;   Knerr  v.  Bradley,  105  Pa.  St. 

In  case  the  vendor  could  not  make  a  190. 

good  title.   The  vendee  was  held  not  =^' Courne  v.  Hewes,  124  Cal.  244. 

to  be  a  tenant,  so  that  the  doctrine  56  Pac.  1032. 

of  estoppel   could  not  prevent  him  «°  Collier  v.   Sharpe.  4   Ky.  L.  R. 

from  buying  in  an  outstanding  title  351.     Compare   Howard    v.    Hill,    4 

to  defeat  that  of  the  landlord.    It  Ky.  L.  R.  719. 


§'    35]  CREATION   OF  THE  EELATION.  44 

crease  the  rights  of  the  other  party.  Thus,  wliere  a  purchaser  of  land 
had  an  option  to  hold  it  as  tenant  but  indicated  his  election  to  buy- 
by  tendering  the  purchase  price,  no  refusal  by  the  owner  could  place 
the  vendee  in  the  attitude  of  a  tenant.  In  the  absence  of  anything 
to  show  such  an  election,  the  occupant  would  continue  to  hold  as 
purchaser.^*^  Still  a  tenant's  right  to  buy  the  premises  at  the  end 
of  a  term  would  not  change  the  relation  of  the  parties  during  its 
continuance,  and  the  landlord  could  oust  the  tenant  for  non-pay- 
ment of  rent.^*^ 

§  35.  Proof  of  chang^e  in  relationship. — The  point  was  made  in 
one  case  that  in  order  to  change  his  relation  to  a  tenant,  the  vendee 
must  have  used  the  actual  ceremony  of  going  out  of  possession  as 
purchaser,  and  returning  as  lessee.  But  the  court  thought  that  this 
was  unnecessary.  If  the  vendee  unconditionally  surrendered  his  con- 
tract and  his  rights  under  it,  and  agreed  to  hold  under  a  new  con- 
tract of  lease,  that  brought  the  case  under  the  landlord  and  tenant 
act.^*^  By  executing  the  rent  obligation,  the  vendees  acknowledged 
the  vendor's  right  to  possession  and  thereby  became  his  tenants,  with 
all  the  rights  of  landlord  and  tenant  subsisting  between  them.  This 
had  the  same  legal  effect  as  if  the  vendor  had  first  evicted  them  and 
then  leased  the  premises  to  them ;  and  his  right  to  lease  to  them  was 
as  clear  as  if  they  had  never  contracted  to  purchase. ^*^  Where  the 
vendee  enters  under  a  bond  for  title  and  has  executed  notes  for  the 
purchase  money  which  are  held  by  the  vendor,  the  surrender  of  bond 
and  notes,  by  the  holders  to  the  maker  and  obligor  respectively,  has 
been  repeatedly  declared  to  be  such  a  renunciation  as  would  annul 
the  contract  of  purchase.-**  In  order  that  a  vendee  may,  by  parol 
agreement,  rescind  a  contract  of  purchase  and  become  the  tenant  of 
the  vendor,  the  rule  is  that  the  vendor  must  show  an  unconditional 
surrender  and  that  the  acts  and  conduct  relied  upon  as  evidence  of 
abandonment  must  be  "positive,  unequivocal  and  inconsistent  with 
the  contract."  It  is  the  province  of  the  trial  judge  to  instruct  the 
Jury  as  to  what  would  constitute  a  renunciation  of  the  contract    and 

'^Griffith  V.  Collins,  116  Ga.  420,  321;    McDougald   v.   Graham,   75   N. 

42  S.  E.  743.  Car.  310;  Falls  v.  Carpenter,  1  Dev. 

="  Clifford    V.    Gressinger,    96    Ga.  &  Bat.  Eq.    (N.   Car.)    237;    Holden 

789,  22  S.  E.  399.  v.  Purefoy,  108  N.  Car.  163,  12  S.  E. 

^  Riley  v.  Jordan,  75  N.  Car.  180.  848;  Fortune  v.  Watkins,  94  N.  Car. 

=«  Thornton    v.    Strauss,    79    Ala.  304;    Taylor  v.  Taylor,  112  N.  Car. 

164.  27,  16  S.  E.  924. 

^Faw  V.  Whittington,  72  N.  Car. 


45  LEASE   OR   LICENSE.  [§    3G 

error  for  him  to  leave  the  jury  without  a  definition  of  what  amounts 
to  an  abandonment.^*^ 

VII.     Lease  or  License. 

§  36.  A  license  in  the  sense  it  is  used  here  is  an  authority  to  do  an 
act  or  a  series  of  acts  on  the  land  of  another  without  possessing  an 
estate  therein,^*®  and  is  to  be  distinguished  from  a  government  per- 
mit issuing  from  municipal,  state  or  national  sources.  Chief  Justice 
Parker  of  the  Massachusetts  Supreme  Court  gave  the  following  defi- 
nition of  such  a  contract:  "A  license  is  technically  an  authority 
given  to  do  some  act  or  series  of  acts  on  the  land  of  another,  without 
passing  any  estate  in  the  land,  such  as  a  license  to  hunt  in  another's 
land,  or  to  cut  down  a  certain  number  of  trees.  These  are  held  to 
be  revocable  while  executory,  unless  a  certain  term  is  fixed,  but  irrev- 
ocable when  executed.  Such  licenses  to  do  a  particular  act  but 
passing  no  estate,  may  be  pleaded  without  deed.  But  licenses  which 
in  their  nature  amount  to  granting  an  estate  for  ever  so  short  a  time 
are  not  good  without  deed,  and  are  considered  as  leases  and  must 
always  be  pleaded  as  such.  The  distinction  is  obvious.  Licenses  to 
do  a  particular  act  do  not  in  any  degree  trench  upon  the  policy  of 
the  law  which  requires  that  bargains  respecting  the  title  or  interest 
in  real  estate  shall  be  by  deed  or  in  writing.  They  amount  to  nothing 
more  than  an  excuse  for  the  act  which  would  otherwise  be  a  trespass. 
But  a  permanent  right  to  hold  anothei's  land  for  a  particular  pur- 
pose, and  to  enter  upon  it  at  all  times  without  his  consent  is  an  im- 
portant interest  which  ought  not  to  pass  without  writing  and  is  the 
very  object  provided  for  by  our  statute."-"  Only  certain  kinds  of 
parol  leases  are  valid;  easements,  being  incorporeal  hereditaments, 
must  always  be  granted  by  deed;  but  the  distinguishing  character- 
istic of  a  license  of  the  kind  under  consideration  is,  that  it  may  al- 

^^  Taylor  v.   Taylor,   112   N.   Car,  Coal  Co.  v.  Peers,  150  111.  344,  37  N. 

27,  16  S.  E,  924;   Faw  v.  Whitting-  E.    937;    Holladay    v.    Chicago   Arc 

ton,  72  N.  Car.  321;  Holden  V.  Pure-  Light    &c.    Co.,    55    111.    App.    463. 

foy,  108  N.  Car.  163,  12  S.  E.  848.  Oregon:  Christensen  v.  Pacific  Coast 

^"Arkansas:    Wynn  v.  Garland,  19  &c.   Co.,   26   Ore.  302,   38   Pac.   127; 

Ark.  23.    Colorado:    Cary  Hardware  Stinson   v.   Hardy,   27   Ore.   584,    41 

Co.  V.  McCarty,  10  Colo.  App.  200,  50  Pac.  116.   United  States:    Morgan  v. 

Pac.   744.    Massachusetts:     Cook   v.  United    States,   14    Ct.   CI.    (U.    S.) 

Stearns,  11  Mass.  533,  537;  Cheever  319. 

V.   Pearson,   16   Pick.    (Mass.)    266,  ="  Cook  v.  Stearns,  11  Mass.  533. 

273;    Hamblett  v.   Bennett,   6  Allen  To  same  effect  see  Davis  v.  Town- 

(Mass.)  140.  Illinois:    Consolidated  send,  10  Barb.  (N.  Y.)  333. 


§    37]  CREATIOX  OF  THE  RELATION.  4G 

ways  be  made  by  parol. -*^  If  a  license  once  granted  could  not  be 
recalled,  it  would  be  in  effect  a  grant  of  an  easement,  and  so  an 
easement  could  be  created  by  parol,  which  is  contrary  to  law.  There- 
fore in  many  cases  there  has  been  an  express  recognition  of  the 
doctrine  that  a  license  is  no  grant  and  that  it  is  in  its  nature  neces- 
sarily revocable,  and  of  the  further  doctrine  that,  in  order  to  confer 
an  incorporeal  right,  such  as  an  easement,  an  instrument  under  seal 
is  essential.^*^  A  claim  for  an  easement  must  be  founded  upon 
grant  by  deed  or  writing  or  upon  prescriptioii  which  supposes  one; 
for  it  is  a  permanent  interest  in  another's  land,  with  a  right  at  all 
times  to  enter  and  enjoy  it.^^" 

§  37.     A  mere  license,  while  it  remains  executory,  is  revocable  at 
the  pleasure  of  the  licensor,   is  indivisible  and  non-assignable. ^^^ 

An  executory  license  confers  such  rights  that  from  their  very 
nature  it  must  be  revocable  at  the  pleasure  of  the  licensor. -^^  A 
mere  license,  unaccompanied  with  any  vested  interest  in  the  real 
estate,  created  by  deed  or  other  writing,  and  independent  of  any 
title  acquired  by  grant,  prescription  or  adverse  possession  and  claim 
for  a  period  of  the  Statute  of  Limitations,  must  be  deemed  to  be,  in 
its  own  nature,  countermandable,  and  essentially  revocable  at  the  will 
of  the  owner  of  the  fee."^^^  Not  only  is  the  rule  well  established 
that  such  a  license  is  not  assignable  but  the  law  also  holds  it  to  be 
revoked  by  the  death  of  either  party  to  the  original  agreement.-^*    A 

-'^  Cook  V.  Stearns,  11  Mass.  533,  Lake  Erie  &  W.  R.  Co.  v.  Kennedy, 

537;    Claflin    v.    Carpenter,    4    Met.  132  Ind.  274,  31  N.  E.  943.     Massa- 

(Mass.)  580,  583;  Wynn  v.  Garland,  chusetts:    Giles  v.  Simonds,  15  Gray 

19  Ark  23.  (Mass.)    441;     Drake    v.    Wells,    11 

-^°  Wood  V.  Leadbitter,  13  M.  &  W.  Allen  (Mass.)  141.  New  York:  Cros- 

838;  Fentiman  V.  Smith,  4  East  107;  dale  v.   Lanigan,  129   N.  Y.  604,  29 

Rex   V.    Horndon,    4    M.    &    S.    565;  N.  E.  824. 

Hewlins  v.  Shippam,  5  B.  &  C.  222.  ==' Desloge  v.  Pearce,  38  Mo.  588; 

=™Pierrepont  v.  Barnard,  6  N.  Y.  Woodward    v.    Seely,    11    111.    157; 

279;  Kent's  Comm.  452.  Kamphouse  v.  Gaffner,  78   111.  453; 

*=^Stinson  v.  Hardy,  27  Ore.  584,  Cook  v.  Stearns,  11  Mass.  533;  Morse 

41    Pac.    116;    Holladay   v.    Chicago  v.    Copeland,    2   Gray    (Mass.)    302; 

Arc  Light  &c.  Co.,  55  111.  App.  463.  Hetfleld  v.  Central  R.  Co.,  5  Dutch. 

="  Arkansas:    Wynn  v.  Garland,  19  (N.   J.   L.)    571;    Eggleston  v.   New 

Ark.  23.    California:    Potter  v.  Mer-  York  &c.  R.  Co.,  35   Barb.    (N.  Y.) 

cer,  53  Cal.  667.   Delaware:    Jackson  162;    Houston    v.    Laffee,    46    N.    H. 

&c.  Co.  v.  Philadelphia  &c.  R.  Co.,  4  505;  Foster  v.  Browning,  4  R.  I.  47. 

Del.  Ch.  180.     Illinois:    Wilmington  =^^  Carleton  v.  Redington,  21  N.  H. 

Water-Power  Co.  v.  Evans,  166   111.  291;    Cowles   v.    Kidder,    24    N.    H. 

548,  46  N.  E.  1083.     Indiana:    Wil-  364. 
liamson    v.    Yingling,    93    Ind.    42; 


47  LEASE   OR   LICENSE.  [§    38 

parol  license  to  be  exercised  upon  the  land  of  another  is  a  mere  per- 
sonal privilege  founded  on  personal  trust  and  confidence  and  there- 
fore it  cannot  be  transferred  to  another,-^^  A  conveyance  of  prem- 
ises operates  as  a  revocation  of  a  parol  license  to  a  third  person  to  do 
certain  acts  thereon,  which  had  been  previously  given  by  the 
grantor.^^*'  Transferring  the  land  to  another,  or  even  leasing  it 
without  any  reservation,  would  of  itself  be  a  countermand  of  the  li- 
cense.^^^  Although  the  licensee  has  entered  and  expended  money,  a 
parol  license  to  enter  upon  the  lands  of  anotlier  is  revocable,  unless 
the  license  is  connected  with  and  necessarily  incident  to,  the  posses- 
sion and  enjoyment  of  property  conveyed  by  a  valid  grant.  The 
correct  principle  is  that  where  there  is  a  license  by  parol,  coupled 
with  a  parol  grant  or  pretended  grant  of  something  which  is  incap- 
able of  being  granted  otherwise  than  by  deed,  there  the  license  is  a 
mere  license;  it  is  not  incident  to  a  valid  grant,  and  it  is  therefore 
revocable.^^^ 

§  38.     A  parol  license  to  cut  and  carry  away  standing  timber, 

when  fully  executed  before  revocation,  constitutes  a  good  defense  to 
an  action  of  trover  brought  by  the  person  giving  the  license,  to  recover 
the  value  of  the  timber.  By  being  executed  the  license  becomes  ir- 
revocable.-^" A  parol  license  to  cut  and  carry  away  wood,  when  no 
time  is  limited,  must  be  acted  upon  within  a  reasonable  time,  and 
must  be  considered  as  applying  to  the  wood  as  substantially  in  the 
state  of  growth  in  which  it  then  was.^^*^  By  such  an  oral  agreement 
no  title  to  the  land  passes,  and  no  property  in  the  trees  is  acquired 
until  they  are  severed  from  the  realty.  The  refusal  of  the  vendor 
to  permit  the  vendee  to  enter  upon  the  land  for  the  purpose  of  cut- 
ting the  trees  is  merely  a  breach  of  an  executory  contract,  the  remedy 

2'' Curtis  v.  La  Grande  &c.  Water  (Mass.)  580;  Hill  v.  Hill,  113  Mass. 

Co.,  20  Ore.  34.  103;   Hill  v.  Cutting,  113  Mass.  107; 

2="  People  V.  Goodwin,  5  N.  Y.  568;  Erskine  v.  Plummer,  7  Me.  447,  22 

Whitaker  v.   Cawthorne,   3   Dev.   L.  Am.   Dec.  216;    Owens  v.  Lewis,  46 

(N.  Car.)  389.  Ind.  488,  15  Am.  Rep.  295;    Pierre- 

="  Carter    v.    Harlan,    6    Md.    20;  pont  v.  Barnard,  6  N.  Y.  279;   Ben- 
Cook  v.  Stearns,  11  Mass.  533,  536.  nett  v.  Scutt,  18  Barb.   (N.  Y.)   347; 

^'^'^  Richmond  &c.  R.  Co.  V.  Durham  Greeley    v.    Stilson,    27    Mich.    152; 

&c.  R.  Co.,  104  N.  Car.  658,  10  S.  E.  Sovereign  v.  Ortmann,  47  Mich.  181, 

659;  Dillon  v.  Crook,  11  Bush  (Ky.)  10  N.  W.  191. 
321.  ^'"'Gilmore    v.     Wilbur,     12    Pick. 

2^9  Spalding  V.  Archibald,  52  Mich.  (Mass.)    120;    Atwood    v.    Cobb,    16 

365,  17  N.  W.  940;  Yale  v.  Seely,  15  Pick.  (Mass.)  229. 
Vt.  221;  Claflin  v.  Carpenter,  4  Mete. 


§■  39] 


CEEATIOX  OF  THE  KELATIOX. 


48 


for  which  is  an  action  for  damages.^"  But  where  a  written  acknowl- 
edgment of  payment  of  money  for  the  purchase  of  standing  timber 
definitely  described  the  lot  on  which  the  timber  stood  and  continued 
as  follows :  "I  further  agree  to  let  to  said  S.  for  eight  years  to  cut 
the  timber  off  said  land,"  it  was  held  that  this  constituted  a  lease  to 
the  purchaser  of  the  timber.^®- 

The  grant  of  a  perpetual  right  to  enter  on  a  tract  of  land  and 
cut  timber  for  the  purpose  of  keeping  in  repair  the  fences  of  another 
tract  belonging  to  the  grantee,  is  within  the  statute  of  frauds  and 
must  be  in  writing.  A  parol  grant  of  such  a  right  is  but  a  license, 
which  is  determined  by  a  sale  of  the  land.-^^ 

§  39.  A  conveyance  for  a  limited  period  of  an  interest  in  land 
subordinate  to  the  grantor's  ownership  in  fee  is  a  lease.     "It  may 

be  said  in  general  terms  that  where  the  conveyance  of  an  estate  in 
land,  subordinate  to  that  of  the  grantor,  to  the  grantee,  upon  a  valid 
consideration,  and  for  a  definite  term  is  made,  the  instrument  mak- 
ing the  conveyance  is  a  lease.  Less  than  this  might  under  some 
circumstances  constitute  a  lease ;  more  could  not  be  required."^*'*  Mr. 
Justice  Cooley,  giving  a  definition  in  broader  terms,  said:  "When 
something  beyond  a  mere  temporary  use  of  land  is  promised;  where 
the  promise  apparently  is  not  founded  on  personal  confidence,  but 
has  reference  to  the  ownership  and  occupancy  of  other  lands  and  is 


="  Drake  v.  Wells,  11  Allen 
(Mass.)  141;  Giles  v.  Simonds,  15 
Gray  (Mass.)  441;  White  v.  Foster, 
102  Mass.  375;  Hill  v.  Hill,  113  Mass. 
103;  Hill  v.  Cutting,  113  Mass.  107. 

^''^Moring  v.  Ward,  5  Jones  L.  (N. 
Car.)  272.  In  Crane  v.  Patton,  57 
Ark.  340,  a  contract  imposing  a  duty 
to  cut  and  remove  certain  timber 
from  land  in  return  for  the  use  of 
the  land  was  held  to  be  a  lease  be- 
cause it  passed  the  right  to  posses- 
sion of  the  land.  And  in  Aveline  v. 
Ridenbaugh,  2  Idaho  168,  wood 
stored  on  certain  premises  was  sold 
with  a  privilege  to  the  vendee  to 
store  the  wood  for  a  year  free  and 
to  enter  and  remove  it  at  any  time 
during  that  period.  A  majority  of 
the  court  held  that  this  created  a 
tenancy.   "The  peculiar  terms  of  the 


sale  .  .  .  mean  that  the  plain- 
tiffs may  store  this  wood  upon  de- 
fendant's premises  during  the  year, 
and  may  at  any  and  all  times  enter 
thereon  to  remove  the  same  cord  by 
cord,  or  in  larger  quantities,  as  their 
business  may  require.  This  makes 
the  premises  of  defendant  the  store- 
house for  plaintiff's  stock  in  trade. 
This  is  clearly  subletting."  One 
judge  dissented  and  thought  the 
privilege  a  mere  license.  This  case 
seems  to  be  a  typical  one  of  a  sale 
of  a  chattel  on  real  estate  and  a 
license  to  remove  it. 

-"^  Yeakle  v.  Jacob,  33  Pa.  St.  376. 

-"*  New  York  &c.  R.  Co.  v.  Randall, 
102  Ind.  453,  457,  26  N.  E.  122,  per 
Niblack,  J. 

2-55  Morrill  v.  Mackman,  24  Mich. 
279,  283. 


49  LEASE   OR   LICENSE.  [§    40 

made  to  facilitate  the  use  of  those  lands  in  a  particular  manner  and 
for  an  indefinite  period  ...  the  interest  is  an  easement  or  a 
leasehold  and  not  a  mere  license."  ^'^^ 

The  right  to  build  a  road  across  land  of  another,  no  location  being 
specified  and  no  duration  for  its  continuance  being  stated,  is  not  a 
lease.  It  would  be  an  easement  which  could  only  be  granted  by  deed. 
When  taking  efEect  as  a  license  created  by  a  simple  instrument  in 
writing,  it  would  not  be  binding  on  a  grantee  of  the  land,  even  though 
the  licensee  expended  money  on  the  faith  of  it.^^° 

"It  would  seem  somewhat  strange,  at  first  thought,  to  say  that  a 
parol  lease  of  the  whole  land  for  the  winter  would  have  been  good, 
and  yet  that  a  parol  agreement  for  a  right  of  way  would  not.  And 
if  the  two  rights  were  from  their  nature  equally  the  proper  subject 
of  a  lease,  such  a  position  could  not  be  maintained.  The  question 
would  then  relate  only  to  the  statute  of  frauds.  But  there  is  another 
obstacle  to  the  validity  of  this  agreement  entirely  independent  of 
the  statute  of  frauds  and  growing  out  of  the  nature  of  the  right 
bargained  for.  It  was  a  right  of  way  for  a  specified  time.  This 
was  an  incorporeal  hereditament,  which  by  the  common  law,  could 
be  created  only  by  deed."-" 

§  40.  A  permissive  occupation,  under  a  contract,  express  or  im- 
plied, conferring  a  legal  possession,  is  indispensable  to  the  creation  of 
a  tenancy.^**^  A  licensee,  however,  need  not  be  in  possession  and  or- 
dinarily does  not  have  possession  transferred  to  him.  So  in  a  case 
where  the  outside  wall  of  a  house  was  let  for  advertising  purposes, 
the  advertiser  was  a  licensee  only,  although  the  contract  was  put  in 
the  form  of  a  lease  and  the  privilege  was  to  continue  for  a  definite 
term.  The  advertiser  was  not  given  possession  of  the  wall,  but  was 
merely  entitled  to  do  a  series  of  acts  in  affixing  bill  boards  upon  it.-''^ 
Whether  a  contract  be  a  lease  or  a  license  will  be  determined,  not 
by  what  the  parties  to  it  may  choose  to  call  it  nor  from  the  language, 
but  from  the  legal  efEect  of  its  provisions.  An  instrument  is  not  a 
demise  or  lease,  although  it  contain  the  usual  words  of  demise,  if  its 

'««Nowlin  Lumber  Co.  v.  Wilson,  ^'^  Central  Mills  v.  Hart,  124  Mass. 

119  Mich.  406,  78  N.  W.  338;   Duin-  123;    Kirchgassner    v.    Rodick,    170 

neen  v.  Rich,' 22  Wis.  550;   Cayuga  Mass.  543,  49  N.  E.  1015;  Rogers  v. 

Railway  Co.  v.  Niles,   13  Hun    (N.  Coy,  164  Mass.  391,  41  N.  E.  652. 

y  )  170.  =™  Goldman  v.  New  York  Adv.  Co., 

=«^  Duinneen  v.  Rich,  22  Wis.  550.  29  Misc.  133,  60  N.  Y.  275.   Compare 

But  see  Sampson  v.  Burnside,  13  N.  R.  J.  Gunning  Co.  v.  Cusack,  50  HI. 

H.  264,  where  this  distinction  was  App.  290. 
not  recognized. 

Jones  L.  &  T.— 4 


§    40]  CREATION  OF  THE  RELATION.  50 

contents  show  that  such  was  not  the  intention  of  the  parties.  So 
the  grant  of  a  right  to  string  wires  through  an  area-way  under  a  side- 
walk took  effect  as  a  license  and  not  as  a  lease,  and  rent  could  not  be 
claimed  for  such  use.  There  was  no  exclusive  possession  given,  or 
intended  to  be  given,  to  the  lessee  or  licensee  of  the  area  space  within 
wliich  the  wires  were  strung.  Every  test  points  to  the  conclusion  that 
it  was  a  mere  license  and  not  a  lease.^^*'  The  same  principle  was  ap- 
plied where  one  railway  line  occupied  a  large  terminal  station  in  con- 
junction with  many  other  roads.^^^  So  where  a  spur  track  was  used 
by  a  railroad  and  the  adjoining  land  was  occupied  and  used  by  the 
owner,  the  joint  occupation  and  use  by  the  railway  company  was 
held  to  be  in  the  capacity  of  a  licensee  and  not  of  a  tenant.^^^  Per- 
mission to  maintain  a  portable  office  and  derrick  on  premises  in  con- 
nection with  wharfage  privileges  failed  to  constitute  a  lease  for  the 
same  reason,  and  the  occupant  could  not  be  removed  by  the  summary 
proceeding  provided  by  statute  and  applicable  to  tenants  alone.^^^ 

"But  a  tenancy  does  not  necessarily  imply  a  right  to  complete  and 
exclusive  possession;  it  may  on  the  other  hand  be  created  with  im- 
plied or  express  reservation  of  a  right  to  possession  on  the  part  of 
the  landlord  for  all  purposes  not  inconsistent  with  the  privileges 
granted  the  tenant."^^*  Where  the  owner  of  a  pond  leased,  demised 
and  let  the  sole  right  to  cut  ice  therefrom,  reserving  to  himself  the 
right  to  cut  ice  needed  for  his  own  nse,  this  was  held  to  create  a 
tenancy  and  not  to  be  a  mere  license.  It  was  the  purpose  of  the  in- 
denture to  transfer  the  sole  and  exclusive  right  to  cut  and  use,  or 
sell,  all  such  ice,  except  what  the  lessor  needed  for  his  private  use. 
The  grantee  had  an  interest  greater  than  a  mere  revocable  license 
and  could  bring  an  action  against  one  who  interfered  with  his  rights ; 
he  had  a  valuable  right  and  if  a  stranger  unlawfully  encroached  upon 
it,  he  might  maintain  a  proper  action  therefor.^^^ 

""Holladay  v.  Chicago  Arc  Light  One  judge  dissented  and  thought  de- 

&c.  Co.,  55  111.  App.  463.   In  the  case  fendant  a  licensee, 

of   Edmunds  v.   Electric   Light  &c.  ""  Union  Depot  Co.  v.  Chicago  &c. 

Co.,  76  Mo.  App.  610,  there  was  an  R.  Co.,  113  Mo.   213,   226,  20   S.  W. 

agreement    allowing    defendant    to  792. 

erect   poles  and   string  wires  over  "^  Central  Mills  v.  Hart,  124  Mass. 

plaintiff's  land   for   $5   per   month,  123. 

same  to  be  removed  on  thirty  days'  "'  Daniels  v.  Cushman,  3  T.  &  C. 

notice.  The  holding  of  the  court  that  (N.  Y.)  125,  affirming  1  Hun  73. 

this  was  a  lease  can  only  be  sup-  "*  Morrill   v.   Mackman,    24   Mich, 

ported  on   the  theory  that  the   d«-  279,  284,  per  Cooley,  J. 

fendant  had  possession  by  virtue  of  "'Richards  v.  GaufEret,  145  Mass. 

the    wires    strung   along   the    land.  486,  14  N.  E.  535. 


51  LEASE    OR   LICENSE.  [§§'   41,   42 

§  41.  Grant  of  mining  rights. — Where  the  acts  of  digging  and 
so  forth,  are  of  such  a  character  that  they  necessitate  an  actual  occupa- 
tion of  the  licenser's  land,  the  license  must  be  in  writing  to  be  valid,  as 
the  transaction  is  really  a  lease  of  the  premises  to  that  extent.  Thus 
the  right  to  mine  certain  land  must  be  created  by  a  lease.  The  case 
would  be  no  different  than  if  the  piece  of  ground  had  been  demised 
for  cultivation  or  for  any  other  purpose.^^^  A  lease  may  not  only 
confer  upon  the  lessee  the  right  to  occupy  and  cultivate  and  to  remove 
the  products  of  cultivation,  but  it  may  confer  on  him  the  power  to 
occupy  and  remove  a  portion  of  that  which  constitutes  the  land  itself. 
Familiar  and  common  examples  of  such  leases  are  those  authorizing 
the  lessee  to  quarry  and  remove  stone,  to  open  mines  and  remove 
minerals,  or  to  sink  wells  for  petroleum  and  natural  gas.  The  power 
to  execute  leases  for  such  purposes,  and  the  fact  that  the  instrument 
by  which  such  interest  in  land  is  granted  may  be  in  all  essential  par- 
ticulars a  lease  will  not  be  questioned.-^'^  A  grant  of  an  exclusive 
right  to  drill  for  oil  and  gas  for  a  definite  time  is  more  than  a  mere 
license;  it  is  a  lease  of  the  land.^^^  Where  possession  is  trans- 
ferred to  the  parties  working  the  mines,  the  transaction  is  held 
to  amount  to  a  lease  ;^'^''  but  a  grant  to  miners  to  enter  and  work 
mines  and  remove  minerals  was  held  to  be  a  license  rather  than  a 
lease,  because  they  were  not  in  possession.^^"  The  right  to  dig  and 
carry  away  ore  from  the  mine  of  another,  is  an  incorporeal  heredita- 
ment or  easement;  and  any  contract  for  the  sale  of  such  right  must 
be  in  writing.  A  verbal  contract,  conferring  such  right,  will  never- 
theless operate  as  a  verbal  license  and,  while  unrevoked,  will  protect 
the  person  to  whom  it  is  given  from  an  action  of  trespass  and  vest 
in  him  the  property  in  the  ore  that  is  actually  dug  under  it.^^^ 

§  42.  Payment  of  consideration  as  a  test. — A  permissive  occupa- 
tion of  land  for  an  indefinite  term  and  without  a  contract  for  recom- 
pense is  in  construction  of  law  a  tenancy  at  will  rather  than  a  license. 
A  license  is  an  authority  to  do  a  particular  act  or  series  of  acts  on 
the  land  of  another  without  possessing  an  estate  therein.     Permission 

='«Ganter  v.  Atkinson,  35  Wis.  48;  ="  Kirk  v.  Mattier,  140  Mo.  23,  41 

Hammond    v.    Winchester,    82    Ala.  S.  W.  252. 

470,  2  So.  892.  '"'  Hobart  v.  Murray,  54  Mo.  App. 

="  Knight  V.  Indiana  Coal  Co.,  47  249;  Lunsford  v.  La  Motte  Lead  Co., 

Ind.   105,  17  Am.  R.  692;    Hey  wood  54  Mo.  426;   Lockwood  v.  Lunsford, 

V.   Fulmer,   158   Ind.   658,   32   N.   E.  56  Mo.  68;   Boone  v.  Stover,  66  Mo. 

574.  430. 

="«  Harris  v.  Ohio  Oil  Co.,  57  Ohio  =«'  Riddle  v.   Brown,  20  Ala.   412; 

St.  629,  50  N.  E.  1129.  Desloge  v.  Pearce,  38  Mo.  588. 


§    43]  CREATION  OF  THE  RELATION.  52 

to  occupy  and  enjoy  premises  rent  free  for  an  indefinite  period  is 
properly  a  tenancy  at  will  and  not  a  license.^^^  Where  the  use  of 
demised  premises  is  restricted  so  that  the  letting  approaches  a  mere 
license,  the  payment  of  consideration  and  an  arrangement  for  a  fixed 
term  tend  to  prove  the  transaction  to  be  a  lease.^^^  The  reservation 
of  rent  is  not,  however,  essential  to  the  creation  of  a  tenancy  and  a 
holding  for  a  definite  term  is  also  unnecessary,  so  that  the  cases  which 
decide  that  the  absence  of  these  two  circumstances  render  what  would 
otherwise  be  a  demise  a  mere  license,  seem  to  depart  from  the  prevail- 
ing view  in  this  respect.^^*  Even  in  a  jurisdiction  where  this  doctrine 
is  law,  the  right  to  erect  and  maintain  a  building  on  land  of  another 
would  amount  to  such  an  interest  in  real  estate  that  it  could  only  be 
transferred  by  an  instrument  in  writing.^^^ 

§  43.  Restricted  and  intermittent  use. — Where  a  theater  was  let 
for  four  nights,  the  owner  to  light  it  and  have  control  of  a  certain 
portion  of  the  box  receipts,  there  was  not  a  tenancy  but  a  mere 
license.-®^  So  an  authority  to  an  unincorporated  charitable  society 
to  use  the  basement  of  a  church  for  its  meetings  and  for  fairs  and 
parties  was  held  to  be  a  mere  license.  The  use  the  society  was  to 
make  of  the  hall  was  not  general  and  exclusive,  but  limited  to  its  own 
special  objects.^*^  In  holding  that  a  contract  for  the  use  of  a  dance 
hall  four  afternoons  did  not  create  a  tenancy,  Morton,  C.  J.,  said: 
"The  use  of  the  hall  by  the  plaintiff  was  not  to  be  continuous,  but 
only  occasional,  and  for  a  few  hours  on  four  separate  days.     He  v^as 

^  Morgan  v.  United  States,  14  Ct.  a  contract  between  the  parties,  they 

CI.    (U.   S.)    319;    Cheever  v.   Pear-  would   amount  to  a  mere  license." 

son,    16    Pick.     (Mass.)     266,    271.  In    accordance   with    this   doctrine. 

Contra,  Lake  Erie  &c.  R.  Co.  v.  Ken-  it  was  held  that  no  tenancy  was  cre- 

nedy,  132  Ind.  274,  31  N.  E.  943.  ated  by  a  permit  given  by  a  quarter- 

-^  Gary  Hardware  Co.  v.  McCarty,  master  for  the  erection  and  mainte- 

10  Colo.  App.  200,  209,  50  Pac.  744.  nance  of  a  house  upon  land  belong- 

^One  of  the  leading  cases  reach-  ing  to  a  military  post   (Keeling  v. 

ing    this    conclusion    is    Branch    v.  Kuhn,  19  Kan.  441);   and  the  same 

Doane,    17    Conn.    402,    where    one  was  held  in  regard  to  a  town  grant 

building  a   mill   on   another's  land  of  an  exclusive  privilege  to  build  a 

by  his  consent  and  occupying  it  con-  market  house   (Brookhaven  v.  Bag- 

tinuously  for  six  years  was  held  not  gett,  61  Miss.  383). 

to   be   a   tenant   of   the   landowner.  "^  Collins  Co.  v.  Marcy,  25  Conn. 

Storrs,   J.,   said   on   page   411:     "If,  239. 

therefore,  the  words,  whatever  they  -'"  Oxford  v.  Leathe,  165  Mass.  254, 

may  be,  which  confer  authority  to  43  N.  E.  92. 

another  to  take  possession  of  land,  "''  Hamblett   v.    Bennett,    6    Allen 

are  not  accompanied  with  language  (Mass.)  140,  145. 
or   stipulations  which   evince    such 


53  LEASE  OR   LICEXSE.  [§44 

not  to  have  the  exclusive  occupation  and  control  of  it;  the  key  was 

never  delivered  to  him,  but  remained  with  the  defendant,  who,  on  tlie 

afternoons  it  was  occupied  under  the  contract,  opened,  lighted,  and 

closed  it.    We  think  the  defendant  would  remain  all  the  time  in  the 

legal  possession  of  the  land ;  that  the  plaintiff  was  to  occupy  it  merely 

as  licensee,  and  would  acquire  under  the  contract  no  interest  in  the 
land."288 

§  44.  A  theater  ticket  is  only  a  license  to  enter  the  part  of  the 
theater  specified  in  it;  and  if  before  the  holder  has  entered,  the 
licenser,  with  no  more  force  than  is  necessary  for  the  purpose,  pre- 
vents him  from  entering,  he  cannot  maintain  an  action  of  tort  for 
the  exclusion.  The  ticket  is  a  license  legally  revocable,  and  after  it 
has  been  revoked,  an  attempt  to  enter  is  unwarranted,  and  neces- 
sary force  to  prevent  an  entry  may  rightfully  be  used.^^''  It  does  not 
alter  the  law  that  the  ticket-holder  has  entered  the  theater  and  is  sub- 
sequently ordered  out.  Upon  the  licensee's  refusal  to  leave  the  hall 
to  which  his  ticket  gave  him  admittance,  the  proprietor  has  a  lawful 
right  to  remove  him.  For  such  removal  an  action  of  trespass  cannot 
be  maintained.  The  licensee  might  have  a  remedy  in  another  form 
of  action  for  breach  of  the  contract;  but  that  cannot  affect  the  de- 
cision in  an  action  of  trespass.-^" 

That  no  incorporeal  inheritance  affecting  land  can  either  be  cre- 
ated or  transferred  otherwise  than  by  deed  is  a  well-established  propo- 
sition. In  all  the  authorities  and  text  books  on  the  subject  a  deed  is 
always  stated  or  assumed  to  be  indispensably  necessary.^'*^  In  the  lead- 
ing English  case  of  Wood  v.  Leadbitter,^^^  the  question  before  the 
court  was  whether  a  ticket  admitting  to  a  grandstand  at  a  race  course 
could  be  revoked.  The  right  conferred  by  the  ticket  was  for  the 
holder  to  go  and  remain,  where,  if  he  went  and  remained,  he  would, 
but  for  the  ticket,  be  a  trespasser.  This  was  a  right  affecting  land 
as  obviously  and  extensively  as  a  right  of  way  over  the  land,  so  that 
on  general  principles  it  would  be  perfectly  clear  tliat  no  such  riglit 
could  be  created  otherwise  than  by  deed.  However,  it  was  argued 
that  the  ticket  was  a  license,  and  that  such  license  was,  under  the  cir- 

=^'' Johnson      v.      Wilkinson,  139     221;    Bryan  v.  Whistler,   8  B.  &  C. 

Mass.  3,  4,  29  N.  E.  62.  288;  Cocker  v.  Cowper,  1  C.  M.  &  R. 

^-'''McCrea     v.     Marsh,     12  Gray     418;  Wallis  v.  Harrison,  4  M.  &  W. 

(Mass.)   211.  538. 

-""  Burton     v.     Scherpf,     1  Allen         '^''  Wood  v.  Leadbitter,  13  M.  &  W. 

(Mass.)    133.  838. 

^^Hewlins  v.  Shippam,  5  B.  &  C. 


§  45]  CREATION"  OF  THE  RELATION,  54 

cumstances,  irrevocable,  and  authorities  were  cited  by  counsel  to  sup- 
port this  argument.  Baron  Alderson  reviewed  all  the  authorities  and 
found  the  only  one  to  support  this  contention  to  be  the  case  of  Taylor 
V.  ^Yaters.^^^  Opposed  to  it  there  are  many  cases  which  all  state  in 
the  most  distinct  manner  that  every  license  is  and  must  be  in  its 
nature  revocable,  so  long  as  it  is  a  mere  license.^^*  "VMiere,  indeed, 
it  is  connected  with  a  grant,  there  it  may,  by  ceasing  to  be  a  naked 
license,  become  irrevocable ;  but  then  it  is  obvious  that  the  grant  must 
exist  independently  of  the  license.  Such  was  the  case  where  hay  on 
the  vendor's  close  was  sold  and  the  conditions  of  the  sale  were  that 
the  purchaser  of  the  hay  might  leave  it  on  the  close  till  Lady-day, 
and  might,  in  the  meantime,  come  on  the  close,  from  time  to  time, 
as  often  as  he  should  see  fit  to  remove  it.  This  was  a  case  not  of  a 
mere  license,  but  of  a  license  coupled  with  an  interest.  The  case  was 
analogous  to  that  of  a  man  taking  goods  and  putting  them  on  his 
land,  in  which  case  the  owner  is  justified  in  going  on  the  land  and 
removing  them.'^^^ 

§  45.  In  cases  where  dams  are  built  and  lands  flowed,  if  more 
than  a  temporary  use  is  intended,  it  is  not  technically  a  license,  but 
takes  effect  as  a  lease  or  easement.-^^  Although  there  are  early  de- 
cisions to  the  effect  that  a  parol  license  to  build  a  dam  on  another's 
land  is  not  within  the  statute  of  frauds  because  it  is  a  mere  grant  of 
a  privilege  to  be  exercised  upon  land,  and  not  of  an  interest  in  the 
land  itself,^^^  the  true  rule  seems  to  be  that  the  right  to  erect  and 
maintain  a  dam  on  the  land  of  another  must  be  regarded  as  such  an 
interest  in  real  estate  as  cannot  pass  by  parol. ^^^  But  where  the  right 
to  flow  adjoining  land  for  mill  purposes  was  conferred  by  statute  on 
payment  of  damages,  a  parol  agreement  to  waive  a  claim  for  such 
damages  was  held  to  be  valid  and  irrevocable.^^ ^  However,  it  has  been 
held  that  when  an  authority  of  this  kind  has  been  acted  upon  and 

=^"'7  Taunt.  378.  mell  v.  Trammell,  11  Rich.  (S.  Car.) 

=»*Rex    v.    Horndon-on-the-Hill,    4  471. 

M.  &  S.  562.  ■'"  Woodbury  v.  Parshley,  7  N.  H. 

=»MVood  V.  Manley,  11  A.  &  E.  34,  237;    Clement  v.   Durgin,  5   Me.   9; 

3  Per.  &  D.  5;   Vin.  Abr.  Trespass  Sampson  v.  Burnside,  13  N.  H.  264; 

(H.),  a  2,  pi.  12;   Patrick  v.   Cole-  Hall  v.  Chaffee,  13  Vt.  150. 

rick,  3  M.  &  W.  483.  ^^^  Moulton  v.  Faught,  41  Me.  298; 

=»«  Smith     V.      Simons,      1     Root  Pitman  v.  Poor,  38  Me.  237;  Thomp- 

(Conn.)  318;  Woodward  v.  Seely,  11  son   v.   Gregory,   4   Johns.    (N.   Y.) 

111.    157;    Mumford   v.   Whitney,   15  81;  Cocker  v.  Cowper,  1  C.  M.  &  R. 

iWend.  (N.  Y.)  380;  Brown  v.  Wood-  418;  Carter  v.  Harlan,  6  Md.  20. 

worth,  5  Barb.   (N.  Y.)   550;   Tram-  =*^  Clement  v.  Durgin,  5  Me.  9. 


55  CROPPING    CONTRACTS.  [§46 

money  expended  in  the  erection  of  the  dam,  the  contract  may  be  en- 
forced in  equity  on  the  ground  that  it  is  taken  out  of  the  statute  of 
frauds  by  part  performance.^""  In  another  case  it  was  said  that  the 
license  could  not  be  revoked  without  tendering  his  expenses  to  the 
licensee.^"^ 

8.    Cropping  Contracts. 

§  46.  The  term  "cropping  contract"  is  used  here  to  indicate  any 
agreement  between  a  landowner  and  a  laborer  in  regard  to  the  culti- 
vation of  land  which  does  not  rise  to  the  dignity  of  a  lease.  ''There 
is  an  obvious  distinction  between  a  cropper  and  a  tenant.  One  has 
a  possession  of  the  premises,  exclusive  of  the  landlord ;  the  other  has 
not.  The  one  has  a  right  for  a  fixed  time,  the  otlier  lias  only  a  right 
to  go  on  the  land  to  plant,  work,  and  gather  the  crop.  The  possession 
of  the  land  is  with  the  owner  as  against  the  cropper.  This  is  not  so 
of  the  tenant."^"- 

A  cropper  has  no  estate  in  the  land;  that  remains  with  the  land- 
lord. Consequently,  although  he  has  in  some  sense  the  possession  of 
the  crops,  it  is  only  the  possession  of  a  servant  and  is  in  law  that  of 
the  landlord.  The  landlord  must  divide  ofE  to  the  cropper  his  share. 
In  short,  he  is  a  laborer  receiving  pay  in  a  share  of  the  crop.^"^ 

"In  construing  contracts  for  the  cultivation  of  land  at  halves  it 
is  impossible  to  lay  down  a  general  rule  applicable  to  all  cases,  be- 
cause the  precise  nature  of  the  interest  or  title  between  the  contract- 
ing parties  must  depend  upon  the  contract  itself,  and  very  slight  pro- 
visions in  the  contract  may  very  materially  affect  the  legal  relations 
of  the  parties.  ...  In  some  cases,  the  owner  of  the  land  gives 
up  the  entire  possession,  in  which  event  it  is  a  contract  in  the  na- 
ture of  a  lease  with  rent  payable  in  kind;  in  other  cases,  he  continues 
to  occupy  the  premises  in  common  with  the  other  party,  or  reserves 
to  himself  that  right,  and  so  a  tenancy  in  common  to  that  extent  is 
created,  and  each  is  entitled  to  the  joint  possession  of  the  crops,  or 
the  possession  of  the  one  is  the  possession  of  the  other  until  division; 
or  he  may  retain  the  sole  possession  of  the  land,  and  the  other  party 
may  have  merely  the  right  to  perform  the  labor  and  receive  half  the 

^""Meetze  v.  Charlotte  &c.  R.  Co.,  ney  v.  State,  101  Ga.  512,  28  S.  E. 

23  S.  Car.  1.  1007. 

="1  Woodbury  v.  Parshley,  7  N.  H.  ^'"  McNeeley  v.   Hart,   10   Ired.   L. 

237.  (N.  Car.)   63;  Brozier  v.  Ansley,  11 

'»=  Appling   v.    Odom,    46    Ga.    583,  Ired.  L.  (N.  Car.)  12;   State  v.  Biir- 

584,  per  McCay,  J.,  quoted  in  Hack-  well,  63  N.  Car.  661;  State  v.  Aus- 
tin, 123  N.  Car.  749,  31  S.  E.  731. 


§    47]  CREATION    OF    THE    RELATIOX.  56 

crops  as  compensation,  or  the  two  parties  may  become  tenants  in  com- 
mon of  the  growing  crops,  while  no  tenancy  in  common,  as  such, 
exists  in  the  land."^"* 

In  speaking  of  the  rights  of  a  cropper  under  a  cropping  contract, 
which  was  held  to  make  him  a  tenant  in  common.  Judge  Bennet, 
speaking  for  the  Vermont  court,  said :  "It  doubtless  gave  him  an  in- 
terest in  the  land.  He  was  not  to  occupy  as  the  mere  servant  of  the 
owner,  neither  did  he  occupy  upon  hire  and  to  receive  a  given  portion 
of  the  crops  as  a  compensation.  He  had  something  more  than  a  mere 
license  to  enter  and  cultivate  the  soil.  He  had  a  right  to  occupy; 
and  the  owner  could  not  exclude  him  while  in  the  performance  of  his 
duties;  but  it  may  be  difficult  to  define  the  precise  nature  and  char- 
acter of  his  interest."^**^ 

§  47.  Whether  an  agreement  for  the  occupation  of  farming 
lands  is  a  lease  or  a  cropping  contract  depends  on  the  intention  of  the 
parties  as  gathered  from  the  attendant  circumstances,^"^  or  from  the 
words  of  the  agreement  when  it  has  been  reduced  to  writing.  In  the 
latter  case  it  is  a  question  of  interpretation  for  the  court  ;^**'^  in  the 
former  it  is  a  question  of  fact  for  the  jury  to  decide  from  the  evi- 
dence.^"^  When  the  jury  have  found  a  tenancy  on  such  facts  it  is 
•  conclusive/*'''  and  not  subject  to  reconsideration  by  the  court  except 
on  the  ground  of  misconduct  or  that  the  verdict  is  against  the  evi- 
dence. 

The  use  of  the  word  "lease"  in  a  contract  is  evidence  that  the  par- 
ties meant  what  the  word  implies,  but  the  guide  to  construction  being 
the  intention  of  the  parties,  the  whole  contract  must  be  examined.^^** 
It  is  not  conclusive  what  a  contract  may  be  named  or  called  by  the 
parties.     The  real  intention  as  expressed  in  the  writing  must  con- 

3M  Warner    v.    Abbey,    112    Mass.  be  regarded  as  landlord  and  tenant 

355,  per  Endicott,  J.    See  also,  Or-  unless  the  Intention  to  make  them 

cutt  V.  Moore,  134  Mass.  48;   Moser  tenants  in  common  were  unmistak- 

v.  Lower,  48  Mo.  App.  85.  able. 

^°=  Aiken  v.  Smith,  21  Vt.  172,  179.  """  Bailey  v.  Ferguson,  39  111.  App, 

'°'' Walls   v.    Preston,   25    Cal.    59;  91;  Johnson  v.  Hoffman,  53  Mo.  504. 

Alwood  V.  Ruckman,  21  111.  200,  201;  ="«  Williams  v.    Cleaver,   4   Houst. 

Hansen  v.  Dennison,  7  111.  App.  73;  (Del.)   453. 

Moser  v.   Lower,   48   Mo.   App.    85;  ='°'*  Foley    v.     Southwestern     Land 

Kamerick  v.  Castleman,  23  Mo.  App.  Co.,  94  Wis.  329,  68  N.  W.  994. 

481;  Somers  v.  Joyce,  40  Conn.  592;  =1"  Ferris  v.  Hoglan,  121  Ala.  240, 

Johnson  v.  Hoffman,  53  Mo.  504.    In  25    So.    834;    Griswold    v.    Cook,    46 

Birmingham  v.  Rogers,  46  Ark.  254,  Conn.  198;   Moser  v.  Lower,  48  Mo. 

it  was  held  that  the  parties  would  App.  85. 


57  CROPPING    CONTRACTS.  [§    48 

trol.  And  contracts  of  this  character  must  be  so  construed  as  to  give 
force  and  effect  to  the  intention  of  the  parties.^^^  Yet  the  words  "de- 
mise and  to  farm  let"  may  be  used  in  an  instrument  as  evidence  of 
the  intention  of  the  parties  to  enter  into  the  relation  of  landlord  and 
tenant  rather  than  to  make  an  agreement  for  the  cultivation  of  land 
for  a  share  of  the  crop.^^-  Thus  there  was  a  tenancy  with  a  crop 
rent  reserved  when  the  agreement  expressly  provided  that  the  owner 
"rented  and  hired,  and  suffered  the  lessee  to  possess  and  enjoy  the 
farm  and  gave  him  the  quiet  and  uninterrupted  possession."^^^  That 
nothing  is  said  about  leasing  or  letting  the  premises  is  evidence  that 
no  tenancy  was  created.  If  nothing  is  said  about  paying  anything 
as  rent,  or  as  a  yearly  rent  for  the  possession  and  enjoyment  of  prem- 
ises for  that  length  of  time,  if  the  language  is  merely  that  of  an  agree- 
ment to  till  a  crop  on  shares  and  divide  it,  this  would  constitute  the 
parties  tenants  in  common  of  the  crop  while  growing  and  when  ma- 
tured.3" 

§  48.  There  has  been  a  tendency  in  certain  cases  to  impute  a 
fixed  intention  to  the  landowner  not  to  create  a  tenancy  by  a  con- 
tract for  cultivation  on  the  shares.  This  applied  particularly  to 
agreements  covering  a  single  year  only.  The  foundation  of  it  is  the 
supposed  benefits  to  the  landlord  from  such  an  interpretation,  which 
makes  him  a  tenant  in  common  in  the  crop.^^°  The  matter  was  dis- 
posed of  in  a  Connecticut  case  in  the  following  language:  "Letting 
land  on  shares  is  a  phrase  well  understood  among  farmers.  It  means 
that  both  parties  shall  share  equally  in  the  products  of  the  soil  to 

»»McNeal  v.  Rider,  79  Minn.  153,  Johns.    (N.  Y.)    151;   Adams  v.  Mc- 

81  N.  W.  830.  Kesson,    53    Pa.    St.    81;    Bishop   v. 

^i^Somers  v.  Joyce,  40  Conn.  592;  Doty,  1  Vt.  37;  Frost  v.  Kellogg,  23 

Steel  v.  Frick,  56  Pa.  St.  172.  Vt.  308;   Leland  v.  Sprague,  28  Vt. 

'"Stewart   v.    Doughty,    9   Johns.  746.     Freeman  on   Co-Tenancy  and 

(N.  Y.)   108.  Partition.    2d    ed.,    §  100,    where    it 

'"  Currey     v.     Davis,     1     Houst.  is   assumed    that    the    object    is    to 

(Del.)  598.  vest  in  each  party  a  portion  of  the 

"■^Hare  v.   Celey,  Cro.  Eliz.   143;  crop.    The  learned  author  proceeds: 

Smyth  v.  Tankersley,  20  Ala.  212;  "Such  being  the  object,  it  ought  to 

Ponder     v.     Rhea,     32     Ark.     435;  require  very  clear  language  to  vest 

Thompson    v,    Mawhinney,    17    Ala.  in  one  the  ownership  of  the  whole 

362;   De  Mott  v.  Hagerman,  8  Cow.  crop,  leaving  the  other  with  a  mere 

(N.    Y.)    220;    Curtner   v.    Lyndon,  chose  in  action  and  in  many  circum- 

128  Cal.  35,  60  Pac,  462;    Guest  v.  stances     without     any     substantial 

Opdyke,    31    N.    J.    Law    552,    554;  remedy  for  an  invasion  of  his  equit- 

Gray  v.  Reynolds,  67  N.  J.  Law  169,  able  right." 
50  Atl.  670;   Bradish  v.  Schenck,  8 


§    48]  CREATION    OF    THE    RELATION.  58 

compensate  the  one  for  his  labor,  and  the  other  for  the  use  of  his  land. 
In  such  cases,  after  the  crops  are  harvested  and  before  a  division  is 
made,  each  party  is  the  owner  of  an  undivided  moiety  of  the  same, 
and  is  a  tenant  in  common  with  the  other  unless  the  contract  contains 
some  special  provision  taking  the  case  out  of  the  general  rule."^^®  Al- 
though it  was  laid  down  in  an  early  English  case^^'^  that  an  agree- 
ment for  cultivating  a  single  crop  on  the  shares  did  not  create  a  ten- 
ancy, the  length  of  the  term  does  not  seem  to  be  the  determining 
factor.  In  many  of  the  cases  where  this  doctrine  has  been  invoked 
and  applied  the  actual  intention  of  the  parties,  as  gathered  from  the 
surrounding  circumstances,  was  not  to  enter  into  the  relation  of  land- 
lord and  tenant.^^^  There  is  no  valid  objection  to  a  tenancy  for  one 
year  with  rent  payable  in  crops  produced,  nor  is  the  fact  that  the 
agreement  is  for  a  single  year  conclusive  as  to  the  intention  of  the 
parties. 

In  one  case  there  was  held  to  be  no  tenancy,  although  the  letting 
for  crop  rent  was  to  continue  for  five  years,  and  the  reason  for  the  de- 
cision was  based  upon  the  intention  of  the  parties,  "It  is  quite  ap- 
parent," says  the  court,  "that  it  was  not  the  intention  of  the  parties 
that  this  contract  should  constitute  a  lease  of  the  land.  It  is  not 
styled  a  lease,  nor  executed  as  such;  but  is  simply  called  an  agree- 
ment. There  are  no  technical  words  in  it  appropriate  to  a  lease,  un- 
less it  be  the  words  "agree  to  let"  There  are  no  words  reserving  any 
portion  of  the  produce  as  rent, — ^but  simply  that  he  (the  cropper)  is 

^'''Connell  v.  Richmond,  55  Conn.  (Ind.)    317,   318,   35   Am.   Dec.   122, 

401,  402,  11  Atl.  852,  per  Parker,  J.  Dewey,    J.,    criticized    this    case    as 

"'The  case  of  Hare  v.  Celey,  Cro.  follows:  "'.  .  .  the  court  said 
Eliz.  143,  was  trespass  by  Hare  and  that  had  the  letting  been  for  two 
others  for  spoiling  the  crop  in  their  or  three  crops,  the  rule  as  to  the 
close.  Hare  was  seized  in  fee  and  right  of  the  owner  to  sustain  an  ac- 
let  to  the  others  to  sow  at  halves  on  tion  for  breach  of  the  close  would 
these  terms,  that  he  should  find  one-  have  been  different.'  We  do  not 
half  the  seed,  and  the  others  the  perceive  the  reason  for  this  distinc- 
other  half,  and  should  manure  the  tion.  The  possession  of  the  tenant 
land;  and  that  Hare  should  have  for  the  purpose  of  raising  one  crop 
one  moiety  of  the  grain  and  the  is  as  complete  for  the  time  being 
others  the  other  half.  "The  court  as  if  his  right  extended  to  the  pro- 
held  it  no  lease  of  the  land,  but  duction  of  two  or  three  crops." 
otherwise  if  it  be  for  two  or  three  ^'*  Walker  v.  Fitts,  24  Pick, 
crops;  and  therefore,  as  to  the  (Mass.)  191;  Guest  v.  Opdyke,  31 
breaking  of  the  close.  Hare  only  N.  J.  Law  552;  Foote  v.  Colvin,  3 
was  to  bring  the  action;  and  as  to  Johns.  (N.  Y.)  216;  Caswell  v.  Dis- 
the  spoiling  of  the  corn,  they  ought  trich,  15  Wend.  (N.  Y.)  379;  Put- 
to  join  being  tenants  in  common."  nam  v.  Wise,  1  Hill  (N.  Y.)  234. 
In   Woodruff   v.    Adams,    5    Blackf. 


59  CROPPING    CONTRACTS.  [§   49 

to  take  the  farm  after  the  usual  custom  and  the  produce  to  be  equally 
divided  between  the  parties.  The  construction  is  to  be  of  the  whole 
instrument,  and  although  the  contract  might  contain  apt  words  to 
make  a  lease,  yet  they  might  be  overcome  by  a  contrary  intent  appear- 
ing on  its  face."^^^ 

§  49.  If  one  be  hired  to  work  land,  receiving  for  his  compensation 
part  of  the  produce,  he  is  a  cropper  and  not  a  tenant.  He  has  no  in- 
terest in  the  land,  but  receives  his  share  as  the  price  of  his  labor. 
The  possession  is  still  in  the  owner  of  the  land,  who  alone  can  main- 
tain trespass ;  nor  can  he  distrain,  for  he  does  not  maintain  the  rela- 
tion of  landlord  and  tenant. ^^"^  Under  such  circumstances  it  is  the 
duty  and  privilege  of  the  landowner  to  divide  ofE  to  the  cropper  his 
share  of  the  crop,  and  until  he  does  so  title  to  the  whole  remains  in 
him.^^^  It  is  often  difficult  to  determine  whether  the  relation  of 
the  parties  is  that  of  landlord  and  tenant  or  that  of  owner-employer 
and  cropper-employe.  It  cannot  be  both,  and  where  the  occupier  is 
to  have  exclusive  possession  and  is  to  deliver  certain  portions  of  the 
crop  as  rent,  the  parties  stand  in  the  relation  of  landlord  and  ten- 
ant.^^-  On  the  other  hand,  one  working  for  a  share  of  the  crop  under 
the  direction  of  the  owner  has  been  held  to  be  a  laborer  within  the 
meaning  of  a  master  and  servant  law.^^^  For  it  is  possible  for  a  land- 
owner to  hire  a  laborer  to  cultivate  his  land  and  agree  to  pay  him  a 
portion  of  the  crop  as  wages.^^*  So  an  agreement  by  which  one  party 
is  to  furnish  the  land  and  stock  and  feed,  the  other  party  is  to  do  the 
work,  and  the  crop  grown  is  to  be  divided  equally  between  them,  consti- 
tutes a  contract  of  hiring,  and  does  not  create  the  relation  of  landlord 

^"  Aiken  v.  Smith,  21  Vt.  172,  180,         ^-^  Ferris  v.  Hoglan,  121  Ala.  240, 

per  Bennett,  J.  25  So.  834;  Hammock  v.  Creekmore, 

320 Pry   y    Jones,    2    Rawle    (Pa.)  48  Ark.   264,  3   S.  W.  180;    Tinsley 

11,  12,  in  the  words  of  Rogers,  J.;  v.  Craige,  54  Ark.  346,  15  S.  W.  897, 

Adams  v.  McKesson,  53  Pa.  St.  81;  16  S.  W.  570;  Woodward  v.  Conder, 

Williams  v.  Cleaver,  4  Houst.  (Del.)  33  Mo.  App.  147.    In  Shaw  v.  Mayer, 

453;   Harrison  v.  Ricks,  71  N.  Car.  95  Cal.  301,  a  landowner  agreed  to 

7,  10.  furnish    140    acres   "more    or    less" 

^"  McNeeley  v.   Hart,   10   Ired.   L.  and   a   cropper   agreed    to   plant   it 

(N.  Car.)  63;  Brazier  v.  Ansley,  11  with  wheat  and  pay  one-fifth  of  the 

Ired.  L.   (N.  Car.)   12;   Harrison  v.  crop   as  rental.     The  cropper  only 

Ricks,  71  N.  Car.  7,  10.  planted   nineteen  acres   and   a  vol- 

'"  Neal  V.  Brandon,  70  Ark.  79,  66  unteer  crop  sprang  up  on  the  bal- 

S.  W.  200.  ance.     Held,   the   cropper  was  nei- 

^"  Huff  V.  Watkins,  15  S.  Car.  82,  ther  a  tenant  nor  tenant  in  common 

85;  Richey  v.  Du  Pre,  20  S.  Car.  6,  and   could  only   claim  the  amount 

10.  he  had  planted. 


§    50]  CREATION  OF  THE   RELATION,  60 

and  tenant.^^^  Such  an  agreement  may  take  effect  as  a  contract  of  em- 
ployment, although  the  laborer  occupies  a  house  on  the  premises,  and 
in  that  case  he  would  hold  possession  as  the  servant  of  the  owner 
without  any  of  the  rights  of  a  tenant.^ ^"^  In  one  case  a  lessee  of  land 
contracted  with  the  owner  to  have  the  latter  cultivate  the  land  and 
receive  as  wages  a  portion  of  the  crop.  Where  such  an  agreement 
had  been  actually  carried  into  effect,  the  lessee  became  the  owner  of 
his  share  of  the  crop,  and  creditors  of  the  landlord  could  not  levy  on 
it  for  his  debts.^^^ 

§  50.  The  character  of  the  cropper's  occupation  is  an  important 
factor  in  determining  the  nature  of  the  contract.  Provisions  in  a 
contract  in  regard  to  the  kind  of  crop  to  be  raised  on  certain  fields, 
the  mode  of  cultivation,  the  making  and  repayment  of  advancements 
tend  to  show  a  joint  enterprise,  and  not  a  tenancy.^^*  When  the 
agreement  spoke  of  "services"  and  the  landowner  agreed  to  supply 
house,  teams,  and  give  one-half  the  crops  in  pay  for  such  services, 
there  was  no  tenancy. ^^®  However,  the  joint  ownership  by  the  land- 
lord of  stock  and  provisions  on  a  farm  does  not  seem  to  limit  the 
character  of  the  tenant's  occupation  where  the  contract  is  to  extend 
over  a  series  of  years.  In  such  cases  a  tenancy  is  created.^^"  And  it 
has  been  held  that  the  occupant  would  be  a  tenant  even  though  the 
landowner  supplies  a  horse  for  use  in  cultivation,^^ ^  or  utensils, 
horses  and  feed  for  both  horses  and  the  tenant.^^^ 

There  are  obvious  reasons  for  holding  that  farm  contracts  for  cul- 
tivation on  the  shares  shall  not  be  construed  as  creating  a  partnership 
between  the  parties.  Such  agreements  are  usually  very  informal  in 
their  character,  often  resting  in  parol.     In  the  absence  of  evidence 

'==Hunt  v.  Matthews,  132  Ala.  286,  L.    (N.  Car.)   55;    State  v.  Burwell, 

31  So.  613.  63  N.  Car.  661;   Curtis  v.  Cash,  84 

'=«  Chase  v.  McDonnell,  24  111.  236;  N.  Car.  41. 

Parrish  v.  Commonwealth,  81  Va.  1.  ^^  Hudgins   v.   "Wood,   72   N.   Car. 

="  Ralph  v.  Lockwood,  61  Cal.  155.  256. 

'='Almand  v.   Scott,  80  Ga.  95,   4  =^»  Smith  v.   Schultz,   89   Cal.   526, 

S.  E.  892;    Bryant  v.  Pugh,  86  Ga.  26  Pac.  1087;    Wentworth  v.   Ports- 

525,  12  S.  E.  927;    Hancock  v.  Bog-  mouth  &c.  R.,  55  N.  H.  540.     Com- 

gus.    111    Ga.    884,    36    S.    E.    970;  pare   Smith   v.    Meech,    26    Vt.    233. 

Bailey  v.  Ferguson,  39  111.  App.  91;  But  see  Baughman  v.  Reed,  75  Cal. 

Unglish  V.   Marvin,   128   N.   Y.   380,  319,  17  Pac.  222. 

28  N.  E.  634,  affirming  55  Hun  45,  '"  Hatchell  v.  Kimbrough,  4  Jones 

28  State  Rep.  68,  8  N.  Y.  283;   Cas-  L.  (N.  Car.)  163. 

well  V.   Ditrich,   15  Wend.    (N.  Y.)  ="  Harrison   v.   Ricks,   71   N.   Car. 

379;    Putnam   v.   Wise,    1   Hill    (N.  7;     Schlicht   v.    Callicott,    76    Miss. 

Y.)   234;   Moore  v.  Spruill,  13  Ired.  487,  24  So.  869. 


61  CROPPING    CONTRACTS.  [§    51 

clearly  manifesting  a  contrary  purpose,  it  will  not  be  presumed  that 
the  parties  to  such  an  agreement  intend  to  assume  the  important  and 
intricate  responsibilities  of  partners,  or  to  incur  the  dangers  fre- 
quently incident  to  that  relation.  The  parties  to  such  agreemdhts 
rarely  contemplate  anything  more  than  a  tenancy  of  the  land.^^' 
While  the  custom  of  renting  farms  upon  shares  is  general,  the  courts 
have  seldom  held  that  such  agreements  create  partnerships  between 
the  owner  of  the  land  and  the  tenant.  A  large  majority  of  the  cases 
construe  them  as  creating  tenancies  only.^^*  Even  where  the  land- 
owner was  to  pay  one-half  the  charges  for  running  the  farm,  exclusive 
of  labor,  no  partnership  was  created;  it  was  merely  a  letting  on 
shares.^^^ 

§  51.  Where  the  person  producing  the  crop  is  in  exclusive  posses- 
sion and  control  of  the  land,  this  usually  constitutes  him  a  tenant,^^® 
even  though  such  occupation  does  not  begin  till  after  the  owner  has 
manured  and  ploughed  the  ground. ^^^  If  the  premises  are  absolutely 
surrendered  under  the  contract,  and  no  control  retained  over  them 
or  over  the  services  of  the  person  cultivating  the  crop,  the  contract  is 
for  rent  and  not  for  service.^^^ 

In  case  the  parties  to  a  contract  for  cultivation  on  the  shares  are 
in  joint  occupation  of  the  land  covered  by  the  contract,  they  become 
tenants  in  common  of  the  crops  produced,  and  do  not  stand  in  the 
relation  of  landlord  and  tenant  to  each  other.^^"  This  disposes  of 
those  cases  where  a  crojDper  cultivates  a  single  field  belonging  to  a 
farm  which  is  in  the  possession  of  the  owner.^*"  A  naked  right  to 
enter  upon  the  field  to  raise  a  single  crop  on  shares,  the  owner  re- 
maining in  general  possession  of  the  farm,  does  not  amount  to  a  lease 

'^'Shrum    v.    Simpson,    155    Ind.  272;   Frame  v.  Badger,  79  111.  441; 

160,  57  N.  E.  708.  Cornell  v.  Dean,  105  Mass.  435. 

^'' Chase  v.   Barrett,  4  Paige    (N.  ='•  Darling  v.  Kelly.  113  Mass.  29. 

Y.)    148;    Quackenbush   v.    Sawyer,  ^^^  Mondschein    v.    State,    55    Ark. 

54  Cal.  439;   Chapman  v.  Eames,  67  389,  392,  18  S.  W.  383. 

Me.    452;     Warner    v.    Abbey,     112  ='' Herskell  v.  Bushnell,  37  Conn. 

Mass.    355;     Dixon    v.    Niccolls,    39  36;    Creel  v.  Kirkham,   47   111.  344; 

111.  372;  Alwood  v.  Ruckman,  21  111.  Delaney    v.    Root,    99    Mass.     546; 

200;  Putnam  v.  Wise,  1  Hill  (N.  Y.)  Walker   v.   Fitts,   24   Pick.    (Mass.) 

234,  37  Am.  Dec.  309.  191;  Guest  v.  Opdyke,  31  N.  J.  Law 

^^' Williams  v.   Rogers,  110   Mich.  552;  Edgar  v.  Jewell,  34  N.  J.  Law 

418,  68  N.  W.  240.     Compare  Spen-  259;   Denton  v.  Strickland,  3  Jones 

cer   v.    World's    Columbian    Exposi-  L.  (N.  Car.)  61. 

tion,  58  111.  App.  637.  '^'' Foote  v.   Colvin.    3   Johns.    (N. 

^'"Wadley    v.    Williams,     75    Ga.  Y.)    216;    Moser   v.   Lower,   48   Mo. 

App.  85. 


§§■    52,    53]  CREATIOX   OF   THE   RELATION.  62 

of  the  land.^*^  So  where  the  landowner  and  the  cropper  were  each 
to  furnish  one-half  the  labor,  the  latter  obtained  no  estate  in  the  land, 
because  he  did  have  exclusive  possession,^*^ 

§  52.  The  relation  of  landlord  and  tenant  may  exist  although  rent 
is  to  be  paid  in  a  part  of  the  crop.^"  Except  for  the  purpose  of  de- 
termining what  sort  of  a  contract  the  parties  intended  to  enter  into, 
it  is  immaterial  whether  rent  is  to  be  paid  in  cash  or  in  kind.  Where 
technical  words  suitable  to  the  creation  of  the  relation  of  landlord 
and  tenant  are  used,  that  relationship  arises  in  spite  of  the  reservation 
of  rent  in  part  of  the  crops.^**  If  the  parties  intended  to  make  a 
lease  and  the  instrument  executed  by  them  was  a  lease,  its  effect  as 
such  was  not  destroyed  by  their  having  contracted  for  the  payment  to 
the  lessor  of  a  portion  of  the  specific  crops  to  be  produced  as  rent  for 
the  premises.^*^  For  "rent  is  a  certain  profit  either  in  money,  pro- 
visions, chattels  or  labor  issuing  out  of  lands  and  tenements  in  retri- 
bution or  return  for  their  use."^*®  And  it  is  valid  to  create  a  tenancy 
by  providing  for  payment  of  rent,  partly  in  kind  and  partly  in 
cash.^*^ 

§  53.  Tenancy  carries  with  it  the  idea  of  legal  ownership  by  the 
tenant  of  the  products  of  the  soil.^*^     When  it  is  established  that  a 

^"Warner   v.    Hoisington,    42    Vt.  395,  39  Atl.  697.     Texas:    Texas  &c. 

94.  R.  Co.  V.  Bayliss,  62  Tex.  570;  Tig- 

="  McLaughlin  v.  Kennedy,  49  N.  nor  v.  Toney,  13  Tex.  Civ.  App.  518, 

J.  Law  519,  10  Atl.  391.  35    S.   W.   881.     Wisconsin:     Strain 

^'^  California:     Walls    v.    Preston,  v.  Gardner,  61  Wis.  174,  21  N.  W. 

25  Cal.  59;  Smith  v.  Schultz,  89  Cal.  35;  Foley  v.  Southwestern  Land  Co., 

526,   26  Pac.   1087;    Clarke  v.   Cobb,  94   Wis.    329,    68   N.   W.    994.     Ver- 

121  Cal.  595,  54  Pac.  74.     Illinois:  mont:    McLellan  v.  Whitney,  65  Vt. 

Alwood    V.    Ruckman,    21    111.    200;  510,  27  Atl.  117;  Reynolds  v.  Chyno- 

Dixon  V.  Niccolls,  39  111.  372;   Han-  weth,  68  Vt.  104,  34  Atl.  36. 

sen    V.    Dennison,    7    111.    App.    73.  '^^  Foley    v.     Southwestern     Land 

Iowa:    Blake  v.  Coats,  3  G.  Greene  Co.,  94  Wis.  329,  68  N.  W.  994;  Row- 

548.     Kentucky:     Redman    v.    Bed-  lands  v.  Voechting,  115  Wis.  352,  91 

ford,    3    Ky.    L.    R.    511.      Maine:  N.  W.  990. 

Dockham    v.    Parker,    9    Me.    137.  ="  Walls  v.   Preston,    25    Cal.    59; 

Maryland:      Hoskins    v.    Rhodes,    1  Smith   v.    Schultz,    89    Cal.    526,    26 

Gill  &  J.  266.     Mississippi:     Doty  v.  Pac.  1087. 

Heth,  52  Mis.  530.    Missouri:    Kame-  ^"  Merrit  v.  Fishe.-,  19   Iowa  354, 

rick  v.  Castleman,  23  Mo.  App.  481.  356,  per  Dillon,  J.,  citing  Co.  Litt. 

New  Hampshire:    Moulton  v.  Robin-  144,  3  Kent.  Com.  460. 

son,  27  N.  H.  550,  followed  in  Hatch  ^"  Symonds  v.  Hall,  37  Me.  354. 

V.  Hart,  40  N.  H.  93.     New  Jersey:  ^"  Smyth   v.    Tankersley,    20   Ala. 

Mundy   v.    Warner,    61   N.    J.    Law  212;    Doty  v.   Heth,   52   Miss.    530; 


63 


CROPPING    COXTRACTS. 


[§   53 


certain  contract  is  a  lease,  and  that  the  relation  of  landlord  and  ten- 
ant exists  between  the  parties,  there  must  be  some  appropriate  words 
in  the  contract  to  indicate  that  the  crops  are  to  be  held  in  co-tenancy, 
or  such  will  not  be  the  conclusion  reached.  If  there  is  nothing  in  the 
language  to  indicate  that  intention,  then  the  products  to  be  delivered 
to  the  landlord  after  harvest,  by  the  tenant,  will  be  deemed  the  prop- 
erty of  the  tenant  until  that  time,  and  treated  as  rent  to  be  then 
paid.^^^  "A  tenant  has  an  estate  in  the  land  for  the  term,  and  con- 
sequently he  has  a  right  of  property  in  the  crops.  If  he  pays  a  share 
of  the  crop  for  rent,  it  is  he  that  divides  off  to  the  landlord  his  share, 
and  until  such  division  the  right  of  property  and  of  possession  of 
the  whole  is  his."^^^  In  a  Wisconsin  case  the  court  say :  "It  is  doubt- 
less true  .  .  .  that  the  fact  that  the  relationship  of  landlord  and 
tenant  exists  is  not  conclusive  on  the  question  of  the  ownership  of,  or 
rights  in,  the  products  of  the  farm.  ...  It  must  be  admitted, 
however,  that  the  general  rule  supported  by  the  great  weight  of  au- 
thority is  that  where  the  relation  of  landlord  and  tenant  exists,  even 
though  the  rent  is  to  be  paid  in  kind,  the  title  to  the  crops  is  in  the 
tenant  until  division  is  made,  unless  specific  provision  has  been  made 
by  the  parties,  in  their  contract,  to  the  contrary ."^^^  However,  there 
is  no  necessary  inconsistency  between  the  relation  of  co-tenancy  as  to 
the  crops  and  tenancy  as  to  the  land.  There  is  certainly  no  rule  of 
law  so  absolute  in  its  nature  as  to  prevent  the  occupant  of  land,  under 


Taylor  v.  Coney,  101  Ga.  655,  28  S. 
E.  974;  Shaffer  v.  Stevens,  143  Ind. 
295,  42  N.  E.  620;  Currey  v.  Davis, 
1  Houst.  (Del.)  598;  Symonds  v. 
Hall,  37  Me.  354;  Bailey  v.  Fille- 
brown,  9  Me.  12;  Turner  v.  Bach- 
elder,  17  Me.  257;  Garland  v.  Hil- 
horn,  23  Me.  442;  Butterfield  v. 
Baker,  5  Pick.   (Mass.)  522. 

^«  California:  Clarke  v.  Cobb,  121 
Cal.  595,  54  Pac.  74.  Illinois:  Al- 
wood  V.  Ruckman,  21  111.  200;  Dixon 
v.  Niccolls,  39  111.  372;  Sargent  v. 
Courrier,  66  111.  245;  Hansen  v. 
Dennison,  7  111.  App.  73.  Indiana: 
Woodruff  V.  Adams,  5  Blackf. 
(Ind.)  317,  35  Am.  Dec.  122;  Front 
V.  Hardin,  56  Ind.  165.  Iowa: 
Townsend  v.  Isenberger,  45  Iowa 
670.  Maine:  Dockham  v.  Parker, 
9  Me.  137;  Richards  v.  Wardwell, 
,82  Me.  343,  19  Atl.  863.     Massachu- 


setts: Warner  v.  Abbey,  112  Mass. 
355;  Darling  v.  Kelly,  113  Mass.  29. 
New  York:  Stewart  v.  Doughty,  9 
Johns.  (N.  Y.)  108.  North  Caro- 
lina: Deaver  v.  Rice,  4  Dev.  &  B. 
L.  (N.  Car.)  431,  34  Am.  Dec.  388; 
Hatchell  v.  Kimbrough,  4  Jones  L. 
(N.  Car.)  163;  Harrison  v.  Ricks, 
71  N.  Car.  7.  Pennsylvania:  Rine- 
hart  V.  Olwine,  5  Watts  &  S.  (Pa.) 
157;  Ream  v.  Harnish,  45  Pa.  St. 
376.  South  Carolina:  De  Vore  v. 
Kemp,  3  Hill  259.  Vermont:  Hurd 
v.  Darling,  16  Vt.  377,  s.  c.  14  Vt. 
214;  McLellan  v.  Whitney,  65  Vt. 
510,  27  Atl.  117. 

'"'  Harrison  v.  Ricks,  71  N.  Car. 
7,  10.  per  Rodman,  J. 

^"  Rowlands  v.  Voechting,  115 
Wis.  352,  91  N.  W.  990,  per  Win- 
slow,  J. 


§    53]  CEEATIOISr  OF  THE  RELATION".  64 

a  contract  which  constitutes  him  a  tenant  in  common  with  the  owner 
of  the  crops,  from  having  as  entire  control  over  the  premises  during  the 
term,  if  the  parties  so  agree,  as  a  tenant  covenanting  to  pay  a  money 
rent  would  have, — it  in  other  words,  from  being  a  tenant  of  the  land 
under  a  lease,  and  at  the  same  time  a  tenant  in  common  of  the  crop 
or  of  some  part  of  it.^^^  The  general  principle  has  been  recognized 
in  many  cases  that  it  is  competent  for  either  party  to  provide  for  the 
vesting  of  title  in  the  crops  in  himself  till  division  is  made.^^^  An 
express  stipulation  that  title  to  the  crop  rent  shall  remain  in  the  land- 
lord is  valid.^°*  So  under  a  lease  of  a  farm  and  stock  of  cattle,  with 
stipulation  that  the  rent  should  consist  of  a  specified  part  of  the  prod- 
ucts, except  the  hay,  which  should  go  wholly  to  the  use  of  the  lessor, 
the  hay  belongs  exclusively  to  him,  though  never  delivered.^"  And 
hay  raised  by  a  lessee  subject  to  the  condition  that  it  shall  be  used  on 
the  farm,  cannot  be  attached  or  taken  on  execution  by  creditors  of  the 
lessee.^^^  It  cannot  be  supposed  that  it  was  intended  to  be  subjected 
to  his  debts  and  carried  away  from  the  farm.  The  provision  requir- 
ing the  hay  to  be  spent  upon  the  farm  is  conformable  to  the  rules  of 
good  husbandry.^"  If  there  is  a  provision  for  a  division  of  the 
specific  crops  with  a  reservation  by  the  landlord  of  an  undivided 
share,  the  parties  become  tenants  in  com^mon.^^^  Where  a  specific 
kind  of  produce  is  to  be  set  off  entire  to  the  landlord,  it  seems  that 
the  cropper  has  no  title  to  it.^^^  In  an  English  case  it  was  held  that 
notwithstanding  a  covenant  to  expend  the  hay  upon  the  land,  the  ten- 
ant had  a  right  to  sell  it  unconditionally,  and  would  merely  be  liable 
to  his  landlord  for  breach  of  covenant.  The  idea  of  the  exclusive 
right  of  the  tenant  to  the  crops,  in  spite  of  stipulations  in  the  lease, 
still  holds  its  ground  in  that  country.  Yet  by  statute  there  a  sheriff 
is  forbidden  to  carry  off  the  premises  any  produce,  which,  by  the  cove- 
nants of  the  lease,  is  to  be  consumed  upon  the  premises.^^" 

^=  Walls   V.    Preston,    25    Cal.    59,  land  v.  Sprague,  28  Vt.  746;   Smith 

66;    Smith  v.   Schultz,  89   Cal.  526,  v.  Atkins,  18  Vt.  461;  Willmarth  v. 

26  Pac.  1087;    Jones  v.   Durrer,   96  Pratt,  56  Vt.  474. 

Cal.  95,  30  Pac.  1027.  ^"'  Potter  v.   Cunningham,   34  Me. 

==^=  Ponder  v.   Rhea,   32   Ark.   435;  192. 

Howell  V.  Foster,  65  Cal.  169,  3  Pac.  ^  Coe  v.  Wilson,  46  Me.  314. 

647;    Griswold    v.    Cook,    46    Conn.  »"  Lewis     v.     Lyman,     22     Pick. 

198;  Angell  v.  Egger,  6  N.  Dak.  391,  (Mass.)  437. 

71  N.  W.  547;  Lanyon  v.  Woodward,  ==«Tignor  v.   Toney,  13   Tex.  Civ. 

55   Wis.    652,   13   N.   W.   863.      This  App.  518,  35  S.  W.  881. 

proposition   is   stated   as   exiomatic  ^=='Kelley  v.  Weston,  20  Me.  232. 

by  Freeman  Cob.  &  Par.  2d  ed.,  §  100.  ="''  Ridgway  v.  Stafford,  4  Eng.  L. 

^  Potter  V.   Cunningham,   34    Me.  &  Eq.  453,  20  L.  J.  N.  S.  Ex.  226. 
192;  Coe  v.  Wilson,  46  Me.  314;  Le- 


65  CROPPING    CONTRACTS.  [§54 

§  54.  Co-tenancy  in  both  land  and  crops. — Thus  far  our  considera- 
tion has  been  directed  to  the  inquiry  whether  an  agreement  for  the 
cultivation  of  land  in  return  for  a  portion  of  the  crop  created  the  re- 
lation of  landlord  and  tenant  between  the  parties  or  took  effect  as  a 
contract  of  employment.  An  intermediate  view  between  these  two 
extremes  is  that  such  a  general  agreement  for  cultivation  on  shares 
creates  a  co-tenancy  in  the  land,  and  consequently  the  parties  become 
tenants  in  common  of  the  crops  produced.^^^  "Letting  on  shares/'  it 
was  explained  in  one  case,  "i^  a,  phrase  well  understood  among 
farmers.  It  means  that  both  parties  shall  share  equally  in  the  prod- 
ucts of  the  land,  to  comjjensate  the  one  for  his  labor  and  the  other  for 
the  use  of  his  land.  In  such  cases,  after  the  crops  are  harvested  and 
before  a  division  is  made,  each  party  is  the  owner  of  an  undivided 
moiety  of  the  same,  and  is  a  tenant  in  common  with  the  other,  unless 
the  contract  contains  some  special  provision  taking  the  case  out  of 
the  general  rule."^^-  Mr.  Freeman,  in  his  treatise  on  "Co-Tenancy 
and  Partition,"  favors  this  view,  and  thinks  that  in  those  "decisions 
holding  that  crops  raised  on  the  shares  belong,  until  division,  solely 
to  one  of  the  contracting  parties,  too  much  importance  was  given  to 
words  to  which  the  parties  attach  no  special  importance.  .  .  .  The 
prime  object  of  contract  is  to  vest  each  party  with  a  share  of  the 
crops  to  be  raised  .  .  .  such  being  the  object  it  ought  to  require  very 
clear  language  to  vest  in  one  the  ownership  of  the  whole  crop,  leaving 
the  other  with  a  mere  chose  in  action."^^^  After  a  division  of  the  crop 
has  been  made  by  the  tenants  in  common,  the  landlord  has  an  absolute 
title  to  the  share  set  off  to  him.    Such  a  division  does  not  necessarily 

^^^  California:     Bernal  v.  Hovious,  65    Pac.    808.      Virginia:     Lowe    v. 

17   Cal.   541;    Knox  v.  Marshall,  19  Miller,  3  Gratt.  (Va.)  205.     In  Iowa 

Cal.    617;    Baughman    v.    Reed,    75  it  was  held  by  three  judges,  two  dis- 

Cal.  319,  17  Pac.  222.     Connecticut:  senting  and  one  concurring  in  the 

Connell  v.  Richmond,  55  Conn.  401,  result   on    another   ground,    that   a 

11  Atl.  852.     Minnesota:    McNeal  v.  landlord    had   title   to   a   crop    rent 

Rider,  79  Minn.  153,  81  N.  "W.  830.  reserved,   and   could   make   a   valid 

Missouri:     Johnson  v.   Hoftman,   53  mortgage  of  it.    Riddle  v.  Dow,  98 

Mo.  504;  Kamerick  v.  Castleman,  23  Iowa  7,  66  N.  W.  1066.    The  tenant 

Mo.    App.    481.      New    Hampshire:  has  title  to  the  other  half,  however. 

Moulton  V.  Robinson,  27  N.  H.  550,  Stickney  v.  Stickney,  77  Iowa  699, 

followed  in  Hatch  v.  Hart,  40  N.  H.  42  N.  W.  518. 

93;  Daniels  v.  Brown,  34  N.  H.  454.  '"  Connell  v.  Richmond,  55  Conn. 

New  York:    Putnam  v.  Wise,  1  Hill  401,  402,  11  Atl.  852,  per  Park,  C. 

(N.  Y.)   234;   Taylor  v.  Bradley,  39  J.;   Richmond  v.  Connell,  55  Conn. 

N.  Y.  129.     Oregon:    Cooper  v,  Mc-  403,  11  Atl.  853. 

Grew,    8    Ore.    327;     Messinger    v.  '"^Freeman    on    Co-Tenancy    and 

Union  "Warehouse  Co.,  39  Ore.  546,  Partition  (2d  ed.),  §  100. 

Jones  L.  &  T.— 5 


§    55]  CREATION  OF  THE  RELATION".  66 

mean  a  delivery  of  one  share  to  the  landlord.  After  the  landowner, 
at  a  request  of  the  tenant,  had  selected  his  share,  which  was  separate 
from  the  rest,  there  could  be  no  further  question  that  a  division  of 
the  property  had  been  effected.^^* 

§  55.  The  doctrine  that  an  agreement  for  a  crop  rent  takes  effect 
as  a  reservation  has  been  advanced  and  seems  to  be  the  settled  law  in 
New  Hampshire.  In  accordance  with  this  view,  whenever  upon  a 
lease  of  land,  either  for  one  crop  or  one  year,  or  for  several  years, 
the  owner  of  the  land  is  to  receive  a  part  of  the  productions  of  the 
land  in  lieu  of  rent,  the  contract  operates  and  takes  effect  by  way  of 
reservation.  The  share  reserved  is  always  the  property  of  the  owner 
of  the  land,  without  severance  or  delivery,  though  both  of  these  may 
be  stipulated  for.  To  accomplish  this  result  it  is  wholly  unnecessary 
to  resort  to  the  idea  that  such  a  contract  of  hire  is  not  a  lease,  or  to 
restrict  it  to  contracts  for  a  single  year.  The  true  construction  of 
the  agreement  would  be  that  the  lessor  excepts  or  reserves  his  share, 
out  of  the  general  grant  of  the  profits,  implied  upon  the  letting  to 
hire;  and  instead  of  a  general  grant  of  the  property,  he  substitutes 
a  grant  of  a  special  and  qualified  interest,  a  right  to  use  the  same  in 
one  particular  way  for  the  common  benefit  of  both  parties.  So  an 
agreement  that  hay  shall  be  fed  upon  a  farm  takes  effect  as  a  reserva- 
tion. According  to  the  true  construction  of  such  a  contract,  the  prop- 
erty in  the  hay  never  passes  to  the  tenants ;  but,  on  the  contrary,  the 
hay  was  reserved  to  be  spent  on  the  farm.^*'^  An  objection  to  such  a 
doctrine  has  been  made  on  the  ground  that  it  would  be  repugnant  to 
the  grant  to  have  the  contract  for  rent  take  effect  as  a  reservation.^^^ 

^"^  Rohrer  v.  Babcock,  126  Cal.  222,  consistent  with  the  grant.     There- 

58    Pac.   537;    Crocker   v.   Cunning-  fore  such  contracts  as  the  present 

ham,  122  Cal.  547,  55  Pac.  404.  are  necessarily  construed  neither  as 

^'^^  Brown  V.  Lincoln,  47  N.  H.  468;  exceptions  or  reservations  but  as 
Ladd  V.  Robinson,  27  N.  H.  550;  covenants  or  agreements  of  the 
Hatch  V.  Hart,  40  N.  H.  93;  Carr  v.  lessee  to  give,  as  rent,  as  many- 
Dodge,  40  N.,  H.  403.  bushels  of  corn  as  the  half  of  the 

^•^Ross  v.   Swaringen,  9   Ired.   L.  crop  may  amount  to  or  deliver,  as 

(N.  Car.)  481.  The  court  say:  "For,  rent,  the  one-half  of  the  corn  that 

in    speaking    of    rents.    Lord    Coke  may  be  made  upon  the  land.     It  is 

says:     'The    lessor    cannot    reserve  simply  a  payment  of  rent,  agreed  to 

parcel  of  the  annual  profits  as  the  be  made  in  corn  instead  of  money; 

vesture  or  herbage  of  the  land  or  but  it  does  not  change  the  property 

the  like,  for  that  would  be   repug-  in  the  crop  while  growing  or  when 

nant  to  the  grant.   Co.  Litt.  142.'   It  gathered  until  it  is  delivered  to  the 

would  be  an  exception  of  a  part  of  lessor." 
the  thing  already   granted   and   in- 


67  CROPPING    CONTRACTS.  [§    56 

But  Judge  Bell,  of  the  New  Hampshire  court,  overrules  this  objec- 
tion by  saying :  "There  can  be  no  good  reason  why  a  grantor  should 
not  be  at  liberty  to  except  out  of  his  grant  any  part  of  it  which  he 
chooses  not  to  include  in  his  conveyance,  or  to  reserve  to  himself  any 
part  of  the  income  which  he  has  not  agreed  to  sell,  and  which  the 
purchaser  has  agreed  he  should  retain.  The  questions  which  arise  in 
cases  of  this  kind  are  merely  questions  of  construction,  and  of  the  in- 
tention of  the  grantor  in  the  language  he  uses."^®^  An  agreement  for 
title  to  the  crop  to  vest  in  the  lessor  until  a  cash  rent  was  paid  has 
also  been  supported  without  recording  on  the  ground  that  it  took  ef- 
fect as  a  reservation.^''^ 

§  56.  In  some  jurisdictions  the  matter  of  letting  on  shares  has 
been  regulated  by  statute.  In  Alabama  if  the  landowner  merely  sup- 
plies the  land  and  fertilizer,  and  the  cropper  is  to  supply  labor  and 
teams,  there  is  a  tenancy  and  the  tenant  owns  the  crop.^*"*  But  where 
the  landowner  furnishes  the  teams  and  the  cropper  merely  supplies 
his  labor,  the  contract  is  one  of  hiring  and  the  relation  of  landlord  and 
tenant  does  not  exist.^''''  Under  such  circumstances  the  cropper  has 
no  title  to  the  crop  and  cannot  bring  trespass  in  regard  to  it.^'^ 

In  Georgia  it  is  provided  by  statute  that  title  to  the  crop,  subject 
to  the  interest  of  the  cropper  therein,  remains  in  the  owner  of  the 
land.^^^  But  the  cropper  still  has  possession  of  the  crop  so  that  he 
would  not  be  guilty  of  larceny  in  converting  it  to  his  own  use.  The 
taking  which  is  necessary  to  complete  the  offense  of  larceny  must  be 
a  trespass  against  the  owner's  possession.    The  conversion  by  a  crop- 

'"  Moulton  v.  Robinson,  27  N.  H.  tenancy.     Shields  v.  Kimbrough,  64 

550,  552,  citing  Touch.  79.  and  the  Ala.  504. 

following  passage  from  Braction,  li.         ^'"Ragsdale    v.    Kinney,    119    Ala. 

2  fol.  32  b  and  249,  cited  by  Coke  454,  24  So.  443,  citing  Ala.  Code  of 

(Co.  Litt.  47  a),  "Poterit  enim  quis  1896,  2712. 

rem  dare  et  partem  rei  retinere,  vel         "*  Jordan    v.    Lindsay,    132    Ala. 

partem  de  pertinentiis,  et  ilia  pars  567,   31    So.   484.     Contra,   Gardner 

quam  retinit  semper  cum  eo  est  et  v.   Head,  108  Ala.   619,  18   So.   551, 

semper  fuit."  decided    under    the    code    of    1886, 

368  Pox  V.  McKinney,  9  Ore.  493.  §  365,  holding  the  parties  were  ten- 

^^^  Kilpatrick  v.   Harper,  119  Ala.  ants    in    common    under    such    cir- 

452,    24    So.    715,    citing    Ala.    Code  cumstances. 

1896,  2711,  2712.    Of  similar  import        ="  Civ.   Code   Ga.   §   3131;    Bryant 

see,  Wilson  v.  Stewart,  69  Ala.  302,  v.  Pugh,  86  Ga.  525,  12  S.  E.  927; 

decided  under  code  of  1876,  §  3474.  Taylor  v.  Coney,  101  Ga.  655,  28  S. 

Prior  to  the  latter  enactment  a  let-  E.  974. 

ting  on  the  shares  did  not  create  a 


8    56]  CREATION  OF  THE  RELATION".  68 

per  of  a  portion  of  the  crop  to  his  own  use  is  neither  larceny  or  in- 
dictable trespass  under  the  code."^ 

In  North  Carolina  the  code  provides  that  "any  and  all  crops  raised 
on  land,"  whether  by  a  tenant  or  cropper  (in  the  absence  of  an 
agreement  to  the  contrary),  shall  be  deemed  and  held  to  be  vested 
in  possession  of  the  landlord  or  his  assigns  at  all  times  until  the  rent 
for  said  land  shall  be  paid  to  the  lessor  or  his  assigns,  and  until  said 
party  or  his  assigns  shall  be  paid  for  all  advances.  So  it  has  be- 
come immaterial  whether  the  producer  of  a  crop  is  a  cropper  or  a 
tenant.^^* 

3"  Lane  v.  State,  113  Ga.  1040,  39  State  v.  Austin,  123  N.  Car.  749,  31 
S.  E.  463.  S.  E.   731,  citing  Code  of  N.   Car., 

«"  State  v.  Surles,  74  N.  Car.  330;     §  1754. 


CHAPTER  11. 

THE   INSTRUMENT   OF  DEMISE. 


1.  Formal  Parts,  §§  57-70. 

2.  Execution  and  Delivery,  §§  71-83. 

3.  Parties  to  Leases,  §§  84-97. 

4.  Description  of  Premises,  §§  98-110. 

5.  Duration  of  Term,  §§  111-119. 

6.  Illegal  Leases,  §§  120-124. 


7.  Leases  Obtained  by  Fraud,  §§125- 

129. 

8.  Collateral    Parol   Agreement, 

§§  130-137. 

9.  Agreements  to  Lease,  §§137a-146. 

10.  Statute  of  Frauds,  §§  147-162. 

11.  Recording,  §§  163-167. 


I.    Formal  Parts. 

§  57.  The  instrument  in  writing  creating  the  relation  of  landlord 
and  tenant  is  termed  a  lease.  "A  lease  when  wc  mean  thereby  the 
instrument,  is  in  legal  language,  an  indenture  of  lease  or  a  deed; 
and  therefore  Bacon  and  Cruise,  and  other  authors  treat  of  leases  under 
the  running  or  general  title  of  deeds.  But  in  common  parlance, 
where  it  is  said  a  man  has  a  lease  of  property,  nothing  more  is  meant 
than  that  he  has  a  term  of  estate  for  years  in  the  premises,  which 
may  be  by  deed  or  a  writing  not  under  seal.  The  former  is  of  itself 
a  lease;  the  latter,  only  written  evidence  of  one;  and  this  distinction 
will  be  found  in  several  of  the  cases  when  the  question  has  been  whether 
the  instrument  did  or  did  not  require  a  stamp."^  There  are  two 
common  forms  in  which  leases  are  made — called  indentures  and  deeds- 
poll.  An  indenture  is  supposed  to  be  executed  by  all  the  contracting 
parties — there  being  as  many  copies  as  there  are  parties  to  the  con- 
tract. Formerly  each  copy  was  indented  or  cut  so  that  they  might 
tally  with  one  another.  The  copy  given  to  the  tenant  is  the  original 
and  that  kept  by  the  landlord  the  counterpart;  but,  as  a  practical 
matter,  they  are  all  originals.  A  deed-poll  is  a  single  instrument 
without  duplicate  copies  and  is  executed  by  the  grantor  or  lessor  alone. 
An  indenture  has  been  defined  to  be  a  formal  written  instrument 
made  between  two  or  more  persons  in  different  interests,  as  opposed 
to  a  deed-poll  which  is  one  made  by  a  single  person,  or  by  several 
having  similar  interests.^ 

^Mayberry  v.   Johnson,  15   N.   J.        =  Bouvier's     Law     Diet.     Rawle's 
L.   116,  121,  per  Hornblower,  C.  J.     Rev. 
Compare  Allen  v.  Lambden,  2  Md. 
279. 

69 


I    58]  THE    INSTRUMENT   OF    DEMISE.  70 

In  construing  a  covenant  in  a  lease  by  indenture,  the  words  of  the 
covenant  are  to  be  taken,  however  set  down  in  the  instrument,  as  the 
words  of  the  party  to  whom  they  properly  belong,  or  if  they  properly 
belong  to  both,  as  the  words  of  both;  the  words  of  an  indenture,  be- 
ing the  words  of  either  party,  are  not  to  be  taken  most  strongly 
against  the  one  or  beneficially  for  the  other,  as  the  words  of  a  deed- 
poll  are.^  Notwithstanding  this  rule  of  construction,  the  lessor  is 
to  be  regarded  as  the  grantor  in  a  deed  of  indenture;  so  that  where 
the  lessor  and  lessee  each  sign  one  part  of  the  indenture  and  then 
exchange  copies  without  signing  the  copy  received,  the  part  entitled 
to  be  recorded  is  that  signed  and  acknowledged  by  the  lessor.*  When 
for  any  reason  the  counterpart  delivered  to  the  lessee  was  not  properly 
signed  by  a  person  duly  authorized,  it  would  seem  that  the  lessor's 
signature  to  the  part  retained  by  him  would  answer  every  purpose. 
But  the  objection  was  made  and  sustained  that  that  part  would  be 
invalid  to  charge  the  lessor  for  want  of  a  proper  delivery  to  the 
lessee.^ 

In  Missouri  it  seems  that  leases  by  deed-poll  have  been  abolished 
by  statute.  A  writing  prepared  by  one  of  the  parties  and  sent  to  the 
other,  but  for  any  reason  left  unsigned  by  such  other  party,  is  not  an 
agreement  made  in  writing  signed  by  the  parties  thereto  as  demanded 
by  the  statute  in  that  state.  It  cannot  be  proved  that  a  tenant  agreed 
to  take  the  premises  for  a  period  of  years  except  by  a  writing  signed  by 
him  evidencing  such  agreement.^ 

§  58.  Lease  distinguished  from  other  instruments.— Though  a 
conveyance  may  be  technically  in  the  form  of  a  lease,  yet  if  it  is  ap- 
parent that  it  was  never  the  intention  of  the  parties  to  create  the 
substantial  relation  of  landlord  and  tenant  between  them,  the  instru- 
ments, whatever  you  please  to  call  them  will,  in  effect,  create  a  fee. 
Thus  where  they  run  to  the  lessee,  to  his  heirs  and  assigns,  as  long 
as  wood  grows  and  water  runs,  reserving  as  rent  one  barley  corn,  to 
all  substantial  purposes,  the  leases,  if  you  call  them  such,  convey  the 
fee.  In  form  they  were  only  leases.  But  no  rights  or  duties  which 
ordinarily  exist  between  landlord  and  tenant  were  created  by  them. 
They  were  permanent  in  their  character ;  the  lessee  was  not  bound  to 
keep  in  repair  or  surrender  up  the  premises ;  and  no  rent  was  reserved 
for  the  non-payment  of  which  an  ejectment  could  be  maintained. 

*  Beckwith  v.  Howard,  6  R.  I.  1.  '  Chesebrough      v.      Pingree,      72 

*  Dudley  v.  Sumner,  5  Mass.  438,     Mich.  438,  40  N.  W.  747. 

474.  0  Combs  v.  Midland  Trans.  Co.,  58 

Mo.  App.  112. 


71  FORMAL    PARTS.  [§    58 

The  whole  deed  must  be  construed  together,  and  most  strongly  against 
the  grantor  where  there  is  room  for  construction^  On  the  other 
hand  where  a  granting  clause  reads  that  one  "hath  granted,  bargained, 
sold,  released  and  confirmed,"  this  is  not  conclusive  against  an  instru- 
ment's being  a  lease ;  because  the  entire  instrument  must  be  examined 
to  determine  this  question.  If  an  annual  rent  is  reserved,  and  a 
covenant  to  pay  the  same  and  ordinary  clauses  for  re-entry  and  distress 
are  inserted,  the  instrument  is  a  lease  and  the  relation  of  landlord  and 
tenant  is  created.^  In  construing  another  instrument  the  court  de- 
cided that  an  estate  less  than  a  freehold  was  intended  to  be  conveyed 
when  the  granting  words  were  those  applicable  to  an  estate  for  years; 
the  interest  was  to  take  effect  in  f uturo ;  and  the  lessees  were  to  pay 
taxes  for  one  year  and  were  to  waive  notice  to  quit.^  Long  continu- 
ance of  an  interest  will  not  of  itself,  convert  what  would  otherwise 
be  a  demise  into  an  estate  in  fee.  The  lease  is  a  perpetual  one  where 
the  lessor  demises  for  such  time  as  the  lessee  shall  pay  the  rent  and 
fulfill  other  stipulations,  and  the  lessee  binds  himself  to  pay  the  rent 
and  comply  with  the  stipulations  without  limitation  as  to  time.  It 
necessarily  follows  that  the  lease  continues  until  put  an  end  to  by 
the  mutual  agreement  of  the  parties  to  it  or  till  the  lessor  may  elect 
to  claim  a  forfeiture,  but  the  instrument  is  nevertheless  a  lease."  An 
owner  of  real  estate  may  convey  the  fee,  receiving  the  consideration 
in  form  of  a  perpetual  annual  rent,  with  forfeiture  upon  non-payment, 
and  he  may  impose  by  deed  a  flowage  servitude  for  a  mill  pond  for 
such  time  and  upon  such  conditions  as  are  satisfactory  to  him.  If  the 
locus  is  a  piece  of  unimproved  land  and  there  is  no  expectation  that 
the  grantee  will  make  any  other  use  of  it  than  to  impose  upon  it  such 
burden  of  water  as  he  may  wish  to  store,  a  conveyance  in  the  form  of 
a  demise  by  deed  sealed,  witnessed,  acknowledged,  and  recorded,  will 
take  effect  as  a  grant  of  an  easement  appendant  to  the  mill.  The 
grant  would  be  to  the  present  mill  owner,  and  to  such  other  persons 
as  may  own  it ;  the  grantor  covenanting  for  himself  and  his  heirs  and 
assigns  that  the  grantee  and  those  acquiring  title  from  him  shall 
quietly  enjoy  the  easement  for  such  time  as  they  shall  observe  the  con- 

'  Propagation    Society   v.    Sharon,  of  the  word  heirs.     1  Jones  R.  P., 

28  Vt.  603;  Stevens  v.  Dewing,  2  Vt.  §  575. 

112;   Arms  v.  Burt,  1  Vt.  303.     Of  « Tyler  v.   Heidorn,  46  Barb.    (N. 

all   the    states   in   which   the   com-  Y.)   439. 

men  law  prevails  as  to  words  of  in-  "Barney   v.   Keith,    4   Wend.    (N. 

heritance,  Vermont  seems  to  be  the  Y.)  502. 

only    state   in    which   an    estate    in  »»Folts  v.  Huntley,  7   Wend.    (N. 

fee  can  be  created  without  the  use  Y.)  210. 


§    59]  THE    INSTRUMENT    OF   DEMISE.  72 

dition  of  the  grant.  The  grant  to  a  mill  owner  of  the  specific  right 
to  flow  land  for  a  time  having  no  more  definite  term  of  continuance 
than  the  grantee's  necessities  offends  no  rule  of  law  or  of  public 
safety." 

§  59.  Technical  requirements  of  form. — No  particular  words  are 
necessary  to  create  a  lease  ;^^  and  it  is  not  necessary  that  the  word 
"lease"  be  used.^^  Any  written  instrument  expressing  the  agreement 
of  the  parties,  signed  by  one  and  accepted  and  acted  on  by  the  other, 
will  be  obligatory  upon  both.^*  Whatever  words  are  sufficient  to  ex- 
plain the  intent  of  the  parties  that  the  one  shall  divest  himself  of  the 
property  and  the  other  come  into  it  for  a  definite  time,  whether  they 
run  in  the  form  of  a  license,  covenant,  or  agreement,  will  in  construc- 
tion of  law  amount  to  a  lease  as  well  as  if  the  most  pertinent  words 
were  used.^^  An  instrument  in  the  form  of  a  receipt  acknowledging 
the  payment  of  money  as  rent  for  a  house  has  been  held  to  be  a  lease. 
In  the  case  reaching  this  conclusion  a  receipted  bill  headed  "A.  B. 
bought  of  C.  D."  bore  at  the  foot  this  signed  memorandum,  "Left 
hay  and  oats  in  stable  on  0  street,  where  A.  B.  takes  possession.  Eent 
to  begin  Oct.  1,  1870,  for  one  year  at  $150."  It  was  held  that  this 
memorandum  was  a  lease.^^ 

So  an  indorsement  of  payment  on  the  back  of  a  title  bond  reciting 
that  this  amount  was  to  go  as  rent  in  case  the  occupant  did  not  elect 
to  take  title  at  the  end  of  a  specified  period,  was  held  to  be  a  lease. 
The  instrument  was  modified  at  the  time  of  its  execution  by  this  in- 
dorsement. This  modification  utterly  destroyed  the  obligatory  charac- 
ter of  the  bond  as  such,  and  practically  converted  it  into  a  lease. 
Where  a  lease  is  given  containing  no  express  provision  respecting  its 
duration,  but  providing  for  the  payment  of  a  sum  in  gross,  which 

"Tuttle  V.  Harry,  56   Conn.   194,  "  Munson     v.     Wray,     7     Blackf. 

14  Atl.  209.  (Ind.)   403,  404;  Watson  v.  O'Hern, 

^=  Alcorn  v.  Morgan,  77  Ind.  184;  6  Watts   (Pa.)    362;    State  v.  Page, 

Maverick   v.   Lewis,   3   McCord    (S.  1   Speer    (S.   Car.)    408;   Upper  Ap- 

Car.)    211;    Upper   Appomattox   Co.  pomattox   Co.   v.   Hamilton,   83   Va. 

v.    Hamilton,    83   Va.    319,    2    S.   E.  319,  2  S.  E,  195;  Branch  v.  Doane, 

195;    Weaver    v.    Wood,    9    Pa.    St.  17   Conn.   402;    Moshier  v.   Reding, 

220;   Folden  v.   State,  13  Neb.  328,  12  Me.  478;  Peck  v.  Hiler,  24  Barb. 

14  N.  W.  412.  (N.   Y.)    178;    Boone  v.   Stover,   66 

"Bussman  v.  Ganster,  72  Pa.  St.  Mo.  430;  Horner  v.  Leeds,  25  N.  J. 

285;  Moore  v.  Miller,  8  Pa.  St.  272;  Law  106,  112;  Williams  v.  Cleaver, 

West  Chicago  St.  R.  Co.  v.  Morri-  4    Houst.     (Del.)    453;    Gibbons    v. 

son  &c.   Co.,  160   111.  288,  43  N.  E.  Dayton,  4  Hun  (N.  Y.)  451. 

393.  i«  Eastman  v.   Perkins,  111  Mass. 

"Alcorn  v.  Morgan,  77  Ind.  184.  30;  Alcorn  v.  Morgan,  77  Ind.  184. 


73  FORMAL   PARTS.  [§59 

shall  be  credited  upon  rent  at  a  given  rate  per  month,  in  the  absence 
of  any  other  evidence  of  intention,  it  may  be  fairly  inferred  that  the 
parties  intended  to  create  a  tenancy  for  the  term  for  which  the  sum 
named  would  pay  at  the  stipulated  rate  per  month.^^  In  an  indict- 
ment for  forgery  of  a  signature  to  a  lease  it  was  urged  that  the  fabri- 
cated writing  was  invalid  as  a  lease  within  the  meaning  of  the  statute. 
But  the  court  replied  that  "the  instrument  was  clearly  a  lease,  which 
is  properly  a  conveyance  of  any  lands  or  tenements  (usually  in  con- 
sideration of  rent  or  other  annual  recompense)  made  for  life,  for 
years  or  at  will.  Though  no  formal  words  are  requisite  to  a  lease  at 
common  law,  the  usual  words  of  operation  in  it  are  'demise,  grant 
and  to  farm  let.'  "'^^ 

A  grant  of  a  franchise  by  the  state  for  a  term  of  years  is  not, 
however,  a  lease.  By  virtue  of  an  act  for  building  bridges,  a  contract 
was  made  by  public  commissioners  for  the  erection  of  a  bridge  and 
the  grant  of  a  right  to  take  tolls  for  a  fixed  period.  This  was  not  a 
lease  although  the  operative  words  were  words  proper  to  create  a  term. 
It  was  simply  a  contract  on  the  part  of  the  commissioners,  acting  as 
trustees  for  the  state  that  the  second  party,  as  a  consideration  for 
building  the  bridges,  should  have  the  tolls  for  a  certain  number  of 
years.^^  So  the  vote  of  a  town  authorizing  the  selectmen  "to  let  the 
town  wharf  as  heretofore"  did  not  constitute  a  lease.  The  town  could 
make  grants  of  real  estate  by  corporate  vote;  and  a  fortiori,  if  they 
could  grant  the  fee  they  could  pass  any  subordinate  interest  in  the 
estate.  But  this  vote  did  not  purport  to  pass  any  interest  in  the 
locus  in  quo,  and  could  not  by  any  reasonable  construction  be  con- 
strued to  amount  to  a  lease.  No  consideration  was  fixed,  and  no 
grantee  or  lessee  named.  No  person,  therefore,  by  the  force  of  this 
act  of  the  town,  without  an  execution  of  the  authority  contained  in 
it,  could  pretend  to  claim  any  interest  in  the  estate.-** 

An  agreement  by  subscribers  to  pay  an  annual  bonus  to  a  landowner 
to  induce  him  to  let  a  building  for  less  than  its  actual  rental  value  is 
not  a  lease  and  does  not  make  the  subscribers  tenants  of  the  land- 
owner so  that  they  would  be  bound  by  privity  of  estate  to  pay  the 
bonus  to  his  assignee.  The  contract  created  no  relation  resembling 
that  of  landlord  and  tenant  between  the  parties.     The  subscribers 

"  Barrett  v.  Johnson,  2  Ind.  App.  '"  Proprietors  &c.  v.  State,  22  N.  J. 

25,  27  N.  B.  983.  Law   593,   affirming    21    N.   J.    Law 

"Folden  v.  State,  13  Neb.  328,  14  384. 

N.  W.  412,  citing  1  Brown  &  Had-  ="  Inhabitants     of      Hingham      v. 

ley's  Com.  Am.  Ed.  744.  Sprague,  15  Pick.  (Mass.)  102, 


§§'    60,    61]  THE    INSTKUMEXT    OF   DEMISE.  74 

acquired  no  right  or  interest  in  the  premises.     The  money  agreed  to 
be  paid  was  not  payable  as  rent.-^ 

§  60.  Date  of  a  lease. — It  is  not  essential  to  the  validity  of  a  lease 
that  it  should  contain  a  statement  of  the  date  when  it  was  executed. 
As  long  ago  as  the  time  of  Lord  Coke  it  was  said :  "And  the  date  of 
a  deed  is  not  of  the  substance  of  a  deed ;  for  if  it  hath  no  date  or  hath 
a  false  or  impossible  date,  as  the  thirtieth  day  of  February,  yet  the 
deed  is  good  for  there  are  but  three  things  of  the  essence  and  sub- 
stance of  a  deed,  that  is  to  say  writing  in  paper  or  parchment,  seal- 
ing, and  delivery."^^  A  deed  does  not  take  effect  from  its  date  but 
from  its  delivery,  and  while  the  presumption  is  that  it  was  delivered 
on  the  day  of  its  date,  it  is  always  competent  to  show  that  the  date 
inserted  in  the  deed  was  not  the  date  of  its  delivery.  ^^  Further- 
more it  may  be  shown  that  a  mistake  was  made  in  writing  the  date 
of  execution  in  the  instrument.-* 

In  a  lease  for  a  year,  the  term  will  commence  from  the  day  of  the 
date  if  not  otherwise  expressed.  The  date  of  the  written  instrument 
is  to  be  regarded  as  the  date  of  the  commencement  of  the  term  of  the 
lease;  no  other  time  being  indicated  by  the  agreement.  This  con- 
struction is  in  strict  analogy  to  what  is  the  uniform  construction 
given  to  notes  and  other  instruments  for  the  payment  of  money  or 
other  thing,  bearing  a  specific  date  and  payable  within  a  specific 
period.^^ 

When  there  was  a  verbal  letting  and  no  time  was  set  for  the  com- 
mencement of  the  term,  it  was  held  that  the  tenancy  began  when  the 
tenant  went  into  possession.^*' 

§  61.  Lease  executed  on  Sunday. — The  statutes  forbidding  the 
transaction  of  secular  business  upon  the  Lord's  Day  render  a  lease 
executed  on  Sunday  void.  Just  Avhat  the  rights  of  the  parties  are 
when  a  tenant  occupies  and  pays  rent  under  a  Sunday  lease  is  a  mat- 
ter of  some  dispute.     In  one  case  a  person  executed  a  lease  and  entered 

"Sanborn  v.   First  Nat.  Bank,  9  A  lease   from   blank   day   of   blank 

Colo.  App.  245,  47  Pac.  660.  A.  D.  1856  "for  and  during  and  until 

"Goddard's  Case,  2  Coke  5.  the  full  end  and  term  of  eighteen 

^^  Blake  v.  Fash,  44  111.  302;  Green  months,"   would  expire  as  soon   as 

v.    Robinson,    Wright    (Ohio)    436;  eighteen  months  from  the  last  day 

Jones    on    Real    Property,    §§  1238,  of  the  year  1856.     Huffman  v.  Mc- 

1239.  Daniel,  1  Ore.  259. 

"■*  Jackson     v.      Schoonmaker,      2        ="  Eberlein    v.    Abel,    10    111.    App. 

Johns.  (N.  Y.)  230.  626;    Feyreisen  v.    Sanchez,   70   III. 

==°Keyes  v.  Dearborn,  12  N.  H.  52.  App.  105. 


75  FORMAL    PARTS,  [§    62 

into  possession  of  the  premises  on  Sunday,  continuing  to  occupy 
and  pay  rent  according  to  tlie  terms  of  tlie  lease.  The  trial  court 
thought  that  by  continuing  in  possession  and  paying  rent  he  ratified 
the  lease  and  made  it  a  valid  contract.  But  upon  appeal  it  was 
held  that  this  decision  of  the  court  was  clearly  wrong.^^  The  lease 
was  absolutely  void  and  was  incapable  of  ratification.^^  The  parties 
could  not  ratify  an  illegal  contract,  though  they  might  make  a  new 
one  with  reference  to  the  same  subject  on  a  subsequent  week-day.^® 
"But  any  arrangement  or  agreement  between  the  parties  on  any  sub- 
sequent day,  whether  direct  and  express,  or  implied  from  their  deal- 
ings with  each  other's  property,  would  be  a  new  and  independent 
transaction.  It  is  not  quite  accurate  to  speak  of  the  ratification  by 
a  party  of  something  the  law  forbids,  and  which  is  made  void,  not 
from  any  want  of  his  full  consent  but  in  spite  of  it."^"  This  does 
not  mean  that  the  relation  of  landlord  and  tenant  cannot  be  estab- 
lished in  a  case  of  this  kind  for  it  may  be  presumed  from  the  con- 
duct of  the  parties  in  reference  to  each  other  and  in  respect  to  the 
lands  which  are  the  subject  of  the  rent.  "Every  other  relation  in 
life  may  be  presumed  from  circumstances,  and  conduct  of  the  parties, 
and  we  are  unable  to  perceive,"  said  the  Alabama  court,  "any  good 
reason  why  that  of  landlord  and  tenant  should  form  an  exception 
to  the  rule."  Although  the  agreement  made  on  Sunday  is  void  for 
immorality,  yet  it  may  be  looked  to  as  a  circumstance,  with  others, 
to  account  for  the  subsequent  conduct  of  the  parties  with  reference 
to  the  possession  of  the  premises.^^ 

When  the  tenant  enters  into  occupation  of  the  premises  on  a  secular 
day,  he  will  be  liable  for  rent  in  an  action  of  use  and  occupations^ 
on  proof  of  the  value  of  such  occupation.^^ 

§  62.  Alteration  of  lease. — The  effect  of  an  alteration  in  a  lease 
depends  on  the  materiality  of  the  change  and  the  purpose  for  which 
it  is  made.  Thus  if  a  lessee  increases  his  estate  by  fraudulently  alter- 
ing his  lease  in  a  material  part  subsequent  to  its  execution,  he  thereby 
destroys  all  his  future  rights  under  the  lease,  cither  to  retain  posses- 

^Vinz  V.  Beatty,  61  Wis.  645,  21  Pope  v.  Linn,   50  Me.   83;    Plaisted 

N.  W.  787.  V.  Palmer,  63  Me.  576;  Vinz  v.  Beat- 

"« Thomas  v.   Hatch,   53  Wis.   296,  ty,  61  Wis.  645,  21  N.  W,  787. 

10  N.  W.  393;   Troewert  v.  Decker,  =' Rainey  v.  Capps,  22  Ala.  288,  291. 

51  Wis.  46,  8  N.  W.  26;  Melchoir  v.  ==  Stebbins     v.      Peck,      8      Gray 

McCarty,  31  Wis.  252.  (Mass.)   553. 

=*  Harrison  v.  Colton,  31  Iowa  16.  ^-^  Ainsworth  v.  Williams,  111  Wis. 

=">  Day     v.     McAllister,     15     Gray  17,  86  N.  W.  551. 
(Mass.)  433,  434.   To  same  effect  see 


§    63]  THE   INSTEUMENT   OF    DEMISE.  76 

sion  of  the  premises  or  to  preclude  the  lessor  from  entering  upon 
them.^*  A  grantee  who  alters  a  deed  in  a  material  respect  cannot 
avail  himself  of  such  deed  in  evidence.  ^^  But  alterations  consisting 
of  changes  in  dates  referring  to  the  time  when  the  lease  was  executed 
which  do  not  effect  the  right  of  the  lessee  to  occupy  the  premises 
do  not  invalidate  the  lease.  Thus,  where  a  term  was  to  commence 
at  a  specified  future  period,  and  alteration  in  the  alleged  date  of 
execution  would  not  change  the  rights  of  the  parties  and  would  not 
preclude  the  party  making  such  alteration  from  claiming  under  the 
lease.^^ 

§  63.  Eeservations  and  exceptions. — It  is  valid  and  not  unusual 
for  a  lessor  to  reserve  certain  rights  in  the  land  demised,  such  as  the 
right  to  drain  over  it  from  his  own  adjoining  land.^^  The  difference 
between  a  reservation  and  an  exception  has  been  stated  by  Lord  Coke 
as  follows:  "There  is  a  diversity  between  a  reservation  and  an  ex- 
ception. The  exception  is  ever  of  part  of  the  thing  granted,  and  of 
a  thing  in  esse  while  a  reservation  is  always  of  a  thing  not  in  esse  but 
newly  created  or  reserved  out  of  the  land  or  tenement  demised,"  and 
he  adds  "that  sometime  the  word  reserved  hath  the  force  of  saving 
or  excepting."^^  It  is  valid  and  enforcible  to  except  from  the  opera- 
tion of  the  general  granting  clause  of  a  lease  such  portions  of  the 
premises  as  the  minerals  upon  them,^®  or  the  trees  growing  thereon.*** 
Such  an  exception  is  construed  against  the  lessor  and  in  favor  of 
the  lessee,*^  but  the  incidental  privileges  necessary  to  the  enjoy- 
ment of  the  thing  excepted  pass  with  the  exception.*^  The  instru- 
ment is  to  be  construed,  as  far  as  possible,  beneficially  for  the  lessee 
so  as  to  enable  him  to  use  the  premises  for  the  purpose  intended. 
But  it  must  also  be  construed  with  a  just  reference  to  the  exception, 
in  favor  of  the  lessor.*^  The  only  restriction  on  the  practice  of  ex- 
cepting a  part  of  the  premises  covered  by  the  general  granting  clause 
of  a  lease  is  that  you  cannot  except  the  very  thing  specifically  granted 

^Chesley  v.  Frost,  1  N.   H.  145;  Graham,    L.   R.    2    H.    L.    Sc.    166; 

Withers  v.  Atkinson,  1  Watts  (Pa.)  Ramsay  v.  Blair,  L.  R.  1  App.  Gas. 

236;  Lewis  v,  Payn,  8  Cow.  (N.  Y.)  701. 

71.  ^oLegh   v.   Heald,    1   B.   Ad.   622; 

""Lee  V.  Lee,  83  Iowa  565,  50  N.  Bullen  v.  Denning,  5  B.  &  G.  842, 

W.  33.  HE.  G.  L.  705. 

"Chadwick  v.   Marsden,   L.   R.   2  "Cardigan   v.   Armitage,    2   B.   & 

Exch.  285.  G.  197,  9  E.  G.  L.  93;  Bullen  v.  Den- 

^  Go.  Litt.  47a.  ning,  5  B.  &  G.  842,  11  E.  G.  L.  705. 

«»Garhart  v.   French,   Hill   &   D.  *^  Shep.  Touch,  100. 
Supp.     (N.    Y.)     17;     Hamilton    v. 


77  FORMAL    PARTS.  [§63 

in  terms ;  you  cannot  destroy  your  grant.  But  where  a  general  grant 
is  followed  by  a  detailed  description  of  the  parts  included  in  it,  an 
exception  of  one  of  these  parts  is  valid  because  the  enumeration  was 
surplusage.**  So  a  further  description  of  a  close  by  stating  the  num- 
ber of  acres  or  poles  it  contains,  does  not  invalidate  an  exception  of 
a  part  of  it,  if  it  was  the  evident  intention  of  the  parties  that  the 
part  mentioned  as  excepted  should  not  pass  to  the  lessee.*^  In  a  lease 
of  premises  under  the  description  of  "the  glebe  farm,"  an  exception 
was  made  of  thirty-seven  acres  which  were  not  specified.  The  court 
decided  that  the  contract  was  not  void  for  uncertainty  but  that  the 
right  of  selection  belonged  to  the  lessor.  However,  he  could  not 
exercise  this  right  oppressively  so  as  to  interfere  with  the  benefiicial 
use  of  the  rest  of  the  farm.*" 

In  the  United  States  exceptions  of  public  roads  or  of  lots  desig- 
nated by  number  or  of  a  specified  number  of  acres  out  of  a  larger 
tract  covered  by  the  granting  clause  have  been  held  good.*^  By  such 
an  exception  the  lessor  continues  to  retain  the  legal  title  and  has  a 
right  to  bring  trespass  or  forcible  detainer  against  a  stranger  who  in- 
terferes with  his  right  of  possession.*^  However,  a  clause  in  a  lease 
of  a  hotel,  giving  the  lessor  a  right  to  name  and  occupy  a  room  and 
obtain  board  there  was  held  to  be  a  mere  covenant  on  the  part  of  the 
lessee  and  not  a  reservation  of  a  specific  portion  of  the  premises 
from  the  operation  of  the  lease.**^  The  reservation  of  a  chamber  in 
a  farm  house  by  a  lessor  gave  him  no  right  in  the  yard  other  than 
that  of  passage-way  to  and  from  it  for  himself.  The  right  of  passing 
with  a  horse  and  wagon  was  denied  him.^**  A  provision  in  an  oil 
lease  that  no  wells  were  to  be  drilled  within  a  certain  distance  of 
a  house  was  held  not  to  be  an  exception  but  merely  to  be  a  limita- 
tion upon  the  right  of  the  lessee  to  bore  wells.^^  It  was  urged  that 
the  same  construction  should  be  put  upon  a  lease  which  excepted  ten 
acres  described  by  metes  and  bounds,  but  the  court  refused  to  sanc- 

*^  Dexter     v.     Manley,     4     Cush.  Va.  600,  9  S.  E.  922;    Greenleaf  v. 

(Mass.)  14.  Birth,  6  Pet.  (U.  S.)   302. 

"  Leigh  v.  Shaw,  3  Dyer  264b,  n.  ^^  Jordan  v.   Staples,  57  Me.   352; 

*=*  Cochrane  v.  McCleary,  Ir.  R.,  4  Bowers    v.    Cherokee    Bob,    45    Cal. 

C.  L.  165;  Ellis  v.  Lord  Primate,  16  495. 

Ir.  Ch.  184.  '"  Polack  v.  Shafer,  46  Cal.  270. 

*«  Jenkins  v.  Green,  27  Beav.  437.  ■'"Fort  v.  Brown,  46  Barb.  (N.  Y.) 

«Munn  V.   Wonall,   53   N.   Y.   44;  366. 

Roberts   v.    Robertson,    53   Vt.    690,  ^^  Westmoreland  &c.  Co.  v.  DeWitt, 

38  Am.  R.  710;   Spillman  v.  Brown,  130  Pa.  St.  235,  18  Atl.  724. 
45  Fed.  291;   Low  v.  Settle,  32  W. 


§■   64]  THE    INSTRUMENT   OF   DEMISE.  78 

tion  it,  holding  that  this  clause  took  effect  as  an  exception  and  title 
to  the  tract  described  remained  in  the  lessor.^ - 

It  does  not  invalidate  an  otherwise  valid  exception  in  a  lease  that 
the  reason  stated  for  making  it  fails.  Thus  certain  lots  were  ex- 
cepted because  they  were  subject  to  outstanding  leases,  and  the  ex- 
ception took  effect  according  to  its  terms  although  the  outstanding 
leases  were  not  in  writing  and  therefore  incapable  of  enforcement.^^ 
A  lease  of  the  hunting  privilege  on  land  is  not  rendered  invalid  by  the 
reservation  of  a  right  of  pasturage  to  the  lessor;  the  exercise  of  these 
two  privileges  not  being  necessarily  inconsistent  with  one  another.^* 

§  64.  Stipulation  for  attorney's  fee. — The  general  right  of  indi- 
viduals of  suitable  age  and  capacity  to  enter  into  any  stipulation 
they  see  fit  to  undertake  enables  persons  to  contract  to  pay  attorney's 
fees  which  are  incurred  by  reason  of  their  own  default.  Such  agree- 
ments are  not  against  public  policy.  So  a  stipulation  in  a  lease  for 
the  payment  of  attorney's  fees  in  case  the  employment  of  one  becomes 
necessary  by  reason  of  the  default  of  the  lessee  is  valid.  Under  such 
a  provision  the  lessor  could  recover  a  reasonable  attorney's  fee  in  an 
action  for  rent.^^  In  Indiana  it  is  provided  by  statute  that  any  and 
all  agreements  to  pay  attorney's  fees,  depending  upon  any  condition 
therein  set  forth  and  made  part  of  any  written  evidence  of  indebted- 
ness are  illegal  and  void.^®  After  this  act  had  been  passed,  an  at- 
tempt was  made  to  collect  attorney's  fees  under  a  lease  reading: 
"And  the  said  party  of  the  second  part  agrees  to  pay  attorney's  fees 
and  other  costs  pertaining  to  this  lease,  or  the  enforcement  of  its 
provisions."  It  was.  asserted  that  this  promise  was  conditional  and 
not  absolute  and  hence  forbidden.  But  the  court  replied  that  an 
implied  condition  that  the  lease  may  be  brought  into  litigation  is 
not  sufficient  to  bring  the  contract  within  the  inhibition  of  the  statute. 
To  be  controlled  by  the  statute  two  things  are  clearly  and  unequiv- 
ocally required.  First.  The  agreement  to  pay  attorney's  fees  must 
depend  on  a  condition.  Second.  The  condition  must  be  set  forth  in 
the  instrument.  The  foregoing  stipulation  to  pay  attorney's  fees  was 
held  to  be  unconditional  and  therefore  valid.^^  The  lessor  must  suc- 
ceed in  his  action  in  order  to  justify  his  conduct  in  bringing  it  and  if 

=-  Spillman  v.  Brown,  45  Fed.  291.  8  So.  30;  Fox  v.  McKee,  31  La.  Ann. 

"2  Hargrove    v.    Miller,    Busb.    L.  67. 

(N.  Car.)  68.  =^  Burns'  Rev.  Stat.,  §  7532. 

"  Kellogg   v.    King,   114    Cal.    378,  "  Talbott  v.  English,  156  Ind.  299, 

46  Pac.  166.  59  N.  E.  857. 

"Richard  v.  Bestor,   90  Ala.  352, 


79  FORMAL   PARTS.  "[§    65 

the  suit  be  for  rent  he  must  show  that  some  rent  was  due  over  and 
above  all  counter-claims.  A  clause  of  this  character  would  not  entitle 
the  lessor  to  an  allowance  for  attorney's  fees  when,  by  reason  of  a 
set-off,  nothing  was  due  him  on  the  rent.^^  Moreover  a  provision  for 
fees  will  not  be  extended  by  construction  and  where  the  lease  was  can- 
celled during  the  term,  it  would  apply  only  to  the  collection  of  such 
rent  as  became  due  prior  to  the  cancellation.^'* 

§  65.  Consideration. — When  a  demise  is  made  by  an  instrument 
under  seal,  the  question  of  consideration  for  the  grant  becomes  im- 
material, as  the  court  will  not  inquire  into  the  lack  of  consideration 
in  a  sealed  instrument.*'"  When  the  demise  is  in  writing  but  not  under 
seal,  the  grant  of  the  leasehold  estate  to  the  lessee  is  an  abundant 
consideration  for  his  undertaking  to  pay  rent.^^  On  the  other  hand 
the  payment  of  rent  is  sufficient  consideration  for  the  demise,  and 
so  is  the  payment  of  something  as  the  equivalent  of  rent.  Thus  a 
lease  of  the  mortgaged  premises  was  executed  by  a  mortgagor  to  a 
mortgagee  and  it  was  urged  that  the  lease  was  void  as  without  con- 
sideration. This  was  clearly  without  weight.  The  lease  was  a  formal 
one  by  the  owner  of  the  land  or  of  an  interest  in  it,  who  was  entitled 
to  possession,  and  was  made  in  consideration  of  what  was,  or  was 
equivalent  to  an  agreement  to  pay  rent  by  the  mortgagee.*'-  So  a 
lease  executed  in  consideration  of  the  payment  of  one  dollar  and  the 
erection  of  valuable  machinery  is  sufficiently  supported.*'^  A  lease 
given  in  consideration  that  lessee  should  build  bridges  and  roads  and 
keep  off  trespassers  is  supported  by  ample  consideration.^* 

An  early  Illinois  statute  authorizing  the  plea  of  want  of  considera- 
tion in  actions  on  notes  and  "other  instruments  in  writing"  was  held 
not  to  include  leases  because  such  instruments  were  well  known  at 
the  time  the  statute  was  passed  and  it  would  have  been  included  by 
name  if  it  had  been  the  intention  of  the  legislature  to  include  it."^ 

The  circumstance  that  a  lease  under  seal  purports  to  be  in  considera- 
tion of  an  annual  rent  does  not  preclude  the  lessor  from  showing  that 
it  was  given  and  accepted  in  satisfaction  of  a  previously  existing 
claim  for  damages  under  a  bond.     There  is  nothing  absurd  or  re- 

5'  Taylor  v.  Lehman,  17  Ind.  App.         *=  Chadbourn  v.  Rahilly,  34  Minn. 

585,  46  N.  E.  84,  47  N.  E.  230.  346,  25  N.  W.  633. 

=»Fox  V.  McKee,  31  La.  Ann.  67.  "'  Herrington  v.  Wood,  6  Ohio  Cir. 

^oDrew  V.  Buck,  12  Hun   (N.  Y.)  Ct.  326. 
267.  "  Gilpin   v.   Adams,  14   Colo.   512, 

^  Hill  V.  Woodman,  14  Me.  38.  24  Pac.  566. 

«' Dunbar  v.  Bonesteel,  4  111.  32. 


§§    66,    67]  THE   INSTRUMENT    OF    DEMISE.  80 

pugnant  in  such  an  agreement  or  understanding  and  to  aver  it  is  not 
to  set  up  anything  inconsistent  with  the  deed.®^ 

§  66.  The  true  construction  of  written  leases  is  to  be  declared  by 
the  court  and  not  submitted  to  the  finding  of  the  jury.*^^  This  is  in 
conformity  with  the  general  rule  that,  where  no  facts  are  in  dispute, 
written  instruments  shall  be  construed  by  the  court,  and  rests  upon 
the  ground  that  the  court  is  better  adapted  for  dealing  with  questions 
of  construction.  So  it  is  the  province  of  the  court  to  inform  the  jury 
of  the  true  import  of  a  written  lease,^^  But  when  there  is  conflict- 
ing testimony  regarding  a  parol  lease,  it  should  be  left  to  the  jury 
to  determine  what  the  terms  of  the  lease  are.^^  So  in  a  case  where 
a  lease  had  been  destroyed  and  the  contents  were  proved  by 
parol  evidence,  it  was  held  to  be  for  the  jury  to  determine  from  the 
evidence  what  were  the  terms  of  the  lease  and  to  determine  under 
proper  instructions  from  the  court  what  was  their  legal  effect.'^^ 

§  67.  The  lease  must  be  construed  as  a  whole,  and  such  a  construc- 
tion placed  upon  it  as  will  render  all  its  clauses  harmonious  and  con- 
sistent. Every  covenant  is  to  be  expounded  with  regard  to  its  con- 
text. In  conformity  with  this  rule  and  in  support  of  the  apparent 
intent  of  the  parties,  covenants  in  large  and  general  terms  have  been 
frequently  narrowed  and  restrained.'^^  "Where  the  demise  is  in  writ- 
ing, the  writing  itself  is  primarily  to  be  considered  in  ascertaining  the 
intention  of  the  parties,  and  all  its  different  provisions  are  to  be  read 
and  construed  together,  so  as,  if  possible,  to  make  a  sensible  and  con- 
sistent whole."^-  In  certain  cases  it  is  necessary  that  a  lease  be  read 
in  the  light  of  the  previous  agreement  out  of  which  it  arose,  in  order, 
if  practicable,  to  give  effect  to  the  actual  understanding  and  agreement 

**McIntyre   v.    City   of   Kingston,  '"Millan    v.    Kephart,    18    Gratt. 

4  U.  C.  Q.  B.  471.  (Va.)   1. 

•^^Durr  V.  Chase,  161  Mass.  40,  36  '^  Iggulden    v.    May,    7    East    237; 

N.  E.  741;  Emery  v.  Owings,  6  Gill  Harlow  v.  Lake  Superior  Iron  Co., 

(Md.)  191;  Folsom  v.  Cook,  115  Pa.  86   Mich.    105;    Barrett  v.   Johnson, 

St.    539,    9    Atl.    93;     Stoddard    v.  2  Ind.  App.  25,  27  N.  E.  983;    Cage 

Waters,    30    Ark.    156;     Brown    v.  v.  Paxlins,  1  Leon.  116;   Broughton 

Schiappacasse,  115  Mich.  47,   72  N.  v.  Conway,  Moore  58. 

W.  1096;   Morris  v.  Kettle,  57  N.  J.  "Street  v.  Chicago  Wharfing  &c. 

Law  218,  30  Atl.  879.  Co.,    157    111.    605,    41    N.    E.    1108, 

«« Great  Pond   &c.   Co.  v.   Buzzell,  affirming    54     111.     App.     569,     per 

39  Me.  173.  Baker,  J. 

^  State  V.  Forsythe,  89  Mo.  667,  1 
S.  W.  834. 


81  FORMAL   PARTS.  [§    68 

of  the  parties.'^^  Words  and  sentences  should  be  construed  to  make 
sense  and  reason.'^*  Thus  a  lease  of  land  and  water-power  at  a  mill 
pond,  near  which  the  landlord  operated  a  tannery  and  fulling  mill, 
contained  the  clause  "meaning  to  reserve  water  at  all  times  to  work  the 
bark  mill,  etc.,  as  now  used."  The  last  three  words  were  construed  to 
limit  the  reservation  to  water  then  actually  in  use  and  not  to  the 
amount  of  water  for  which  the  mill  had  a  capacity  at  that  time.'^^ 
Where  in  a  lease  of  a  mill  there  was  a  reservation  of  a  lien  "on  all 
goods,  chattels  and  oilier  property"  the  expression  "other  property" 
was  construed  to  refer  to  such  other  chattels  personal  as  should  be 
brought  upon  the  land  and  did  not  include  a  building  and  fixtures 
therein.^  ^ 

§  68.  Custom  of  the  country. — Contracts  creating  the  relation  of 
landlord  and  tenant  should  not  be  treated  differently,  in  respect  to 
their  construction,  from  other  contracts,  and  the  meaning  and  effect 
of  a  lease  is  to  be  gathered  from  the  language  used.  The  plain  mean- 
ing of  such  language  cannot  be  changed  by  evidence  of  the  custom  of 
the  country.  It  would  be  impossible  to  administer  justice  according 
to  the  real  intention  of  the  parties  by  endeavoring  to  make  custom  on 
the  subject  the  rule  for  interpreting  their  contract,  because  witnesses 
disagree  as  to  what  the  custom  is."  The  general  rule  is  that  the  plain, 
ordinary  and  popular  sense  or  meaning  of  the  words  or  terms,  used 
by  the  parties,  shall  be  taken  in  preference  to  their  strict,  grammatical 
and  etymological  meaning,  unless  the  subject  matter  of  the  contract 
has  acquired,  by  the  usage  of  trade,  or  the  like,  a  peculiar  sense,  dif- 
ferent from  its  popular  meaning ;  and  in  such  case,  the  peculiar  sense 
of  such  language  shall,  in  that  particular  case,  prevail."  A  farmer's 
custom  that  the  lessee  in  consideration  of  clearing  land,  shall  have  the 
right  to  sell  the  cut  timber,  is  good,  and  when  clearly  established,  pre- 
vails where  the  contract  is  silent.    The  contract  in  the  case  where  this 

"  Reading  Iron  Works,  150  Pa.  St.  the  expression  used  meant  the  same 

369,  24  Atl.  617.  thing;    that  the  elevator  would   be 

'*  Norris  v.   Showerman,   2   Doug,  operated,  and  thereby  induced  lessee 

(Mich.)   16.  to  accept  the  lease,  it  was  held  that 

"  Wyman  v.  Farrar,  35  Me.  64.  the  lease   should  be  interpreted   to 

'« First   Nat.   Bank   &c.   v.   Adam,  mean  that  the  elevator  would  be  op- 

138  111.  483,  28  N.  E.  955,  reversing  erated   by   the   lessor.     Schmohl   v. 

34   111.   App.   159.     Where   covenant  Fiddick,  34  111.  App.  190. 

in  lease  to  put  in  an  elevator  did  •■  Iddings   v.    Nagle,    2    W.    &    S. 

not    contain    an    express    provision  (Pa.)  22. 

that   the   lessor   should    "maintain"  "Robertson    v.    French.    4    East 

it,  but  the  agent  of  lessor  said  that  130,  136,  5  Vin.  Abr.  510. 
Jones  L.  &  T.— 6 


§■§    69,    69a]  THE   INSTRUMEXT    OF   DEMISE.  82 

conclusion  was  reached  contained  no  agreement  that  the  lessee  was  to 
account  for  any  of  the  timber.  On  the  contrary,  he  was  bound  to  clear 
the  land,  and  might  have  burnt  the  fallen  timber  and  thus  have  com- 
plied with  his  contract.  Furthermore,  the  evidence  as  to  the  custom 
was  uncontradicted.^^ 

§  69.  Inconsistent  and  contradictory  clauses. — Where  a  lease  is  on 
a  printed  form  filled  in  with  writing  and  the  written  provisions  are 
inconsistent  with  the  printed  part,  it  is  the  usual  rule  of  construction 
that  such  as  are  written  will  control  those  that  are  printed  on  the 
presumption  that  the  latter  were  left  by  inadvertence.^"  But  if  they 
can  all  be  retained  and  interpreted  together,  none  are  to  be  rejected. 
In  accordance  with  the  latter  rule  a  printed  exemption  from  liability 
for  fire  and  unavoidable  accidents  was  held  to  limit  a  written  cove- 
nant to  repair,  such  limitation  being  consistent  with  the  written  provi- 
sion.*^ A  written  provision  giving  the  lessee  an  option  to  renew  is  not 
inconsistent  with  a  printed  covenant  on  his  part  to  yield  up  possession 
at  the  end  of  the  term.  The  provision  of  such  a  printed  clause  and  of 
that  in  writing  may  each  be  given  effect.  If  such  action  under  the  writ- 
ten clause  as  would  operate  to  extend  the  lease  is  not  taken,  the  printed 
clause  takes  effect  at  once,  otherwise  it  would  take  effect  at  the  end 
of  the  renewal  term.*^  Where  there  are  two  printed  clauses  to  the 
same  effect,  the  erasure  of  one  does  not,  however,  raise  the  presumption 
that  the  other  was  left  in  by  inadvertence.  So,  in  case  a  lease  was  on 
a  printed  form,  and  the  covenant  not  to  sub-let  had  been  erased,  but 
a  subsequent  clause  giving  the  lessor  a  right  to  re-enter  in  case  lessee 
sub-let  without  consent  was  left  unchanged,  it  was  held  that  the 
erasure  of  the  covenant  did  not  raise  an  inference  that  the  condition 
was  intended  to  be  of  no  effect.®^ 

§  69a.  By  the  term  "relet,"  when  used  in  an  alternative  provision 
for  the  purchase  of  improvements,  the  parties  mean  a  new  letting  for 
a  fixed  and  definite  term,  such  as  was  the  term  created  by  the  lease.  An 
agreement  at  the  expiration  of  the  lease  which  creates  a  tenancy  at  will, 
terminable  at  any  time  by  the  lessor  by  a  month's  notice,  cannot  be  re- 

"  Duncan  V.  Blake,  9  Lea  (Tenn.)  «=  Seaver    v.    Thompson,    189    111. 

534.  158,  59   N.  E.  553,  affirming  91   111. 

'"Ball  V.  Wyeth,  8  Allen  (Mass.)  App.  500. 

275;    Seaver  v.   Thompson,  189   111.  ""  Pond  v.  Holbrook,  32  Minn.  291, 

158,  59  N.  E.-553,  91  111.  App.  500.  20  N.  W.  232.    See  §  392. 

«^Ball  V.  Wyeth,  8  Allen  (Mass.) 
275. 


83  FORMAL    PARTS.  [§    70 

garded  as  such  a  reletting  as  was  intended  by  the  parties  to  the  lease 
in  the  provision  under  consideration,  and  which  should  have  the  effect 
of  releasing  the  lessor  from  his  obligation  to  pay  for  improvements.®* 
Where  two  leases  between  the  same  parties  are  executed  at  the  same 
time  and  relating  to  the  same  subject  matter,  both  are  to  be  construed 
together  as  one  instrument.*^ 

§  70.  Reformation  of  lease. — The  general  principle  that  an  error 
in  a  written  instrument  made  by  mutual  mistake  of  the  parties  thereto 
will  justify  its  reformation  by  a  court  of  equity  is  applicable  to  a 
lease.*®  Thus  it  has  been  held  to  be  a  valid  defense  to  an  action  for 
rent  that  the  written  lease  did  not  contain  the  agreement  of  the  par- 
ties. The  court  dismissed  the  suit  and  ordered  that  the  lease  be  cor- 
rected and  reformed.*^  It  is  a  further  well  established  principle  that 
to  justify  the  reformation  of  a  written  lease,  the  alleged  mistake  or 
omission  must  be  shown  by  clear,  unequivocal  and  satisfactory  proof.** 
Relief  was  not  granted  when  the  parties  to  the  transaction  directly 
disputed  one  another  as  to  the  actual  agreement  and  no  tliird  person 
was  present  at  the  negotiations,*®  The  inquiry  in  such  a  case  is  always  ' 
directed  to  the  ascertainment  of  what  was  really  the  object  of  the 
agreement.  The  question  is  not  whether  there  has  been  a  previous 
agreement  in  parol,  but  whether  the  subject  of  the  agreement  as  made 
was  that  stated  in  the  lease,  or  some  other,  which  the  party  through 
some  mistake  failed  accurately  to  describe.®"  A  lease  which  by  reason 
of  the  ignorance  and  mistake  of  the  scrivener  failed  to  conform  to  the 
oral  agreement  made  by  the  parties  was  reformed  where  the  evidence 

'^Moseley  v.  Allen,  138  Mass.  81.  kins  Univ.,  17  Wash,  160,  49  Pac. 
The  word  "term,"  though  appropri-  247;  Green  Bay  &c.  Co.  v,  Hewitt, 
ate  to  designate  a  lease-estate,  will  62  Wis.  316,  21  N.  W.  216,  22  N.  W. 
yet  be  controlled  by  the  plain  mean-  588;  Rose  Clare  Lead  Co.  v.  Had- 
ing of  the  contract,  and  may  mean  den,  54  111.  260;  Pomeroy's  Eq.  Jur., 
the  end  of  the  term  for  which  one  §  852,  et  seq. 

is  employed.    State  v.  Page,  1  Speer  "  Wyman    v.    Sperbeck,    66    Wis. 

(S.  Car.)   408.  495,  29  N.  W.  245, 

«=Cook  County  &c.  Co.  v.  Labahn  ^»  Chapman  v.  Dunwell,  115  Iowa 

Brick  Co.,  92  III.  App.  526;   Wilson  533,  88  N.  W.  1067;  Murphy  v.  First 

V.  Roots,  119  111.  379,  386,  10  N.  E.  Nat.   Bank,  95   Iowa  325,   63   N.  W. 

204.     Compare  Gardt  v.  Brown,  113.  702;    Wyman   v.   Sperbeck,   66   Wis. 

111.  475.  495,  29  N.  W.  245;   Harter  v.  Chris- 

*"  Nielander  v.  Chicago  &c.  R.  Co.,  toph,  32  Wis.  245. 

114  Iowa  420,  87  N,  W.  285;   Silbar  «' Chapman  v.  Dunwell,  115   Iowa 

.V.  Ryder,  63  Wis.  106.  23  N.  W.  106;  533,  88  N.  W.  1067. 

Crookston  Co.  v.  Marshall,  57  Minn.  ■"'Nielander  v,  Chicago  &c.  R.  Co., 

333,  59  N.  W.  294;    Jenkins  v.  Jen-  114  Iowa  420,  87  N.  W.  285. 


§  71]  THE  ixstru:mext  of  demise.  84 

clearly  showed  what  the  agreement  was.  The  omission  of  the  lessee 
to  read  the  instrument  did  not  defeat  his  right  to  a  reformation.  The 
evidence  showed  that  the  lessee  was  an  ignorant  man,  reading  English 
with  difficulty,  and  he  had  a  right  to  rely  on  the  scrivener.''^ 

A  party  to  an  instrument  seeking  relief  of  this  nature  should  use 
diligence  in  enforcing  his  rights  and  avoid  undue  delay.  However, 
not  every  negligence  in  this  respect  will  stay  the  hand  of  the  court,  the 
highest  possible  care  not  being  demanded.  Thus  the  relief  asked  for 
was  granted  in  a  case  where  not  only  had  the  defendant  suffered  no 
prejudice  from  the  delay,  but  the  very  purpose  of  defeating  the  relief 
demanded  would  be  to  obtain  an  advantage  to  which  it  was  not  en- 
titled.®^ Fraudulent  conduct  on  the  part  of  the  person  seeking 
reformation  will  defeat  his  right  to  relief.  But  where  the  application 
was  by  an  assignee  of  the  lease  who  was  in  no  way  connected  with  the 
alleged  fraudulent  erasure  of  a  clause  in  the  lease,  the  court  granted  his 
request.    The  bill,  on  its  face,  entitled  the  plaintiff  to  relief.**^ 

Where  a  dispute  in  regard  to  a  defective  lease  is  no  longer  between 
the  original  parties,  the  remedy  of  specific  performance  might  be  given 
'  the  lessee  against  an  assignee  who  was  afEected  with  knowledge  so  as 
to  stand  in  no  better  position  than  the  lessor.  Thus  when  a  tenant 
entered  into  possession  of  premises  under  a  lease  which  did  not  con- 
tain a  name  of  one  of  the  lessors,  and  which  was  not  acknowledged, 
and  the  tenant  made  improvements  and  paid  rent,  he  was  entitled  to 
specific  performance  of  the  terms  of  the  defective  lease  as  against  a 
vendee  of  the  lessor  who  took  with  actual  knowledge.®* 

II.     Execution  and  Delivery. 

§  71.  All  that  is  necessary  to  the  execution  of  a  lease  is  that  it 
should  be  signed  and  delivered.  It  is  not  necessary  that  it  should  be 
either  witnessed  or  acknowledged,  except  for  the  purpose  of  entitling 

"  Silbar  v.  Ryder,  63  Wis.  106,  23  would  not  agree  to  that,  it  would  be 

N.  W.  106.     Where  a  lease  signed  cancelled.      Neuenberger   v.    Neuen- 

by   an  aged   and   ignorant   German  berger,  16  Ky.  L.  R.  710. 

omitted   a  material  portion   of  the  "■  Nielander  v.  Chicago  &c.  R.  Co., 

things  which  the  lessee  was  to  do,  114  Iowa  420,  87  N.  W.  285. 

as  payment  of  rent,  by  reason  of  a  "  Rose  Clare  Lead  Co.  v.  Madden, 

mistake   of   the   draftsman,    it  was  54  111.  260. 

held    that   the   lease    would    be    re-  "  Schulte    v.    Schering,    2    Wash, 

formed    to    conform    to    the    origi-  127,  26  Pac.  78;   McGlauflin  v.  Hol- 

nal  intent  of  the  parties,  or  if  lessee  man,  1  Wash.  239,  24  Pac.  439. 


85  EXECUTION   AND   DELIVERY.  [§    71 

it  to  record.^^  It  is  a  general  rule  supported  by  an  abundance  of  au- 
thority that  a  lease  of  real  property,  duly  signed  by  the  parties  but 
not  witnessed  or  acknowledged,  is  valid  between  the  parties  and 
against  purchasers  having  actual  notice  of  its  existence.^^  Tenants 
who  enter  under  a  lease  sufficient  except  for  lack  of  acknowledgment, 
and  pay  rent  and  erect  improvements,  cannot  be  ejected  by  a  subse- 
quent vendee  of  the  landlord's,  who  takes  with  knowledge  of  these 
facts,^^  A  lease  is  obligatory  against'the  grantor  though  not  acknowl- 
edged, and  when  the  grantee  goes  into  possession  under  it  the  rights 
of  the  parties  are  regulated  by  the  terms  of  the  contract.^*  Where 
a  statute  provides  that  a  lease  shall  be  good  against  none  but  the  lessor 
unless  it  is  acknowledged,  witnessed  and  signed,  it  is  held  that  such  a 
lease  is  good  against  a  lessee  who  has  occupied  the  premises.  The  legis- 
lature did  not  intend  to  make  such  a  contract  binding  on  one  party  and 
void  as  to  the  other.  The  reasonable  construction  of  the  statute  is  to 
hold  that  it  was  intended  to  make  the  contract  valid  as  to  both  parties 
if  to  either.  Otherwise  there  would  be  a  want  of  mutuality.  The  lease 
being  in  force  against  the  landlord,  the  agreement  to  pay  rent  is  in 
force  against  the  tenant. ^^ 

However,  the  effect  of  the  almost  universal  legislation  on  this  sub- 
ject is,  that  unless  a  lease  for  more  than  seven  years  or  some  similar 
term  specified  by  statute  has  been  acknowledged  and  recorded  accord- 
ing to  law,  it  is  valid  only  between  the  parties  and  such  as  have  actual 
notice  thereof.  In  this  respect  a  lease  stands  on  the  same  footing  as 
a  deed,  and  an  intending  purchaser  is  entitled  to  rely  on  the  record 
title  in  determining  whether  real  estate  is  free  from  incumbrances.^*'*' 
Where  a  lease  purporting  to  have  been  executed  by  and  between 

°^  Roberts  v.  Nelson,  65  Minn.  240,  Co.,  46  Conn.  92;  Lake  v.  Campbell, 

68  N.  W.  14;   Morton  v.  Leland,  27  18  111.  106;    McGlauflin  v.  Holman, 

Minn.  35,  6  N.  W.  378;    Lydiard  v.  1  Wash.  239,  24  Pac.  439. 

Chute,  45  Minn.  277,  47  N.  W.  967.  ""McGlauflin  v.  Holman,  1  Wash. 

In  Minnesota  in  1863,  leases  for  a  239,  24  Pac.  439;   Schulte  v.  Scher- 

term  not  exceeding  three  years  did  ing,  2  Wash.  127,  26  Pac.  78. 

not  have  to  be  executed  in  the  pres-  *'  Town  of  Lemington  v.  Stevens, 

ence    of   two   witnesses.      It   seems  48  Vt.  38. 

that  leases  for  a  longer  period  did  «» Johnson  v.  Phoenix  &c.  Ins.  Co., 

have  to  be  thus  witnessed.     Chand-  46  Conn.  92,  103. 

ler  v.  Kent,  8  Minn.  524.  '""  Anthony   v.    New   York   &c.    R. 

»«Emrich  v.  Union  &c.  Co.,  86  Md.  Co.,    162    Mass.    60,    37    N.    E.    780; 

482,  38  Atl.  943;  Kittle  v.  St.  John,  Toupin  v.   Peabody,   162  Mass.   473, 

10  Neb.   605,  7  N.  W.   271;    Weaver  39   N.   E.   280;    Wihelm   v.   Mertz,   4 

v.  Coumbe,   15  Neb.  167,  17  N.   W.  G.   Greene    (Iowa)    54;    Hopping  v. 

357;    Baldwin  v.  Walker,   21   Conn.  Burnam,    2    G.    Greene    (Iowa)    39. 

168;    Johnson    v.    Phoenix    &c.    Ins.  See  §§  163-167. 


§    72]  THE   INSTRUMENT    OF   DEMISE.  86 

strangers  and  a  party  to  the  suit  is  offered  in  evidence,  and  its  execu- 
tion is  not  admitted  by  the  opposite  party,  such  execution  must 
be  proved.  However,  where  such  lease  purports  to  be  signed  by 
a  subscribing  witness,  proof  of  such  signature  being  the  genuine 
handwriting  of  the  witness  is  sufficient.  ^"^ 

§  72.  On  the  other  hand,  a  different  rule  prevails  in  some  states, 
to  the  effect  that  unless  the  statutory  requirements  as  to  the  execution 
of  a  lease  are  complied  with,  no  action  can  be  maintained  upon  it  in 
its  character  of  a  lease.  In  one  of  these  jurisdictions  an  action  of 
covenant  for  rent  was  brought  on  a  lease  which  was  neither  witnessed 
nor  acknowleged.  The  court  refused  to  allow  a  recovery,  saying: 
^'Because  the  agreement  was  not  acknowledged  and  recorded  agreeably 
to  the  registration  laws  of  the  state,  it  passed  at  law  no  title  whatever 
in  the  demised  premises  to  the  appellant,  and  consequently  the  cove- 
nant for  the  payment  of  rent  which  is  dej^endent  on  the  appellant's 
title,  or  interest  in  the  demised  premises  created  by  the  agreement,  is 
wholly  inoperative  and  void;  and  no  such  action  of  covenant  can  be 
maintained  thereon."  The  landlord's  remedy  for  rent  would  not  be  in 
covenant.  If  the  occupation  of  the  premises  was  without  his  consent 
it  would  be  trespass  quare  clausum  f  regit;  if  with  his  consent,  an  action 
for  use  and  occupation  could  be  maintained.^*"^  In  Ohio  it  is  held  that 
a  deed  for  the  conveyance  of  the  title  of  lands  not  in  accordance  with 
the  provisions  of  the  statute  is  insufficient  to  convey  title. ^''^  The  same 
doctrine  would  be  applicable  to  an  indenture  which  was  not  acknowl- 
edged or  recorded.  It  would  be  utterly  inoperative  to  convey  the  term 
as  a  lease.  The  lessees  would  take  nothing  by  the  instrument  as  a 
lease.  If  this  instrument  entitled  the  landlord  to  recover  rent  in  an 
action  of  covenant,  one  executed  in  a  similar  manner,  purporting  to 
convey  a  fee  simple  in  land,  would  entitle  the  grantee  to  recover  in 
an  action  for  the  title  and  possession  of  the  lands,  but  such  is  not  the 
law.^°*  In  a  case  where  the  defectively  executed  lease  purported  to 
convey  a  perpetual  leasehold  estate,  it  was  held  that  the  lessee  took 
only  an  equitable  rather  than  a  legal  estate.^"^  A  defectively  executed 
lease  could  not  be  held  good  for  the  short  period  during  which  in- 

*<"  Oberfelder  v.  Kavanaugh,  21  Roads  v.  Symmes,  1  Ohio  281 ;  John- 
Neb.  483,  32  N.  W.  295.  ston  v.  Haines,  2  Ohio  55. 

"=  Anderson    v.    Critcher,    11    Gill  "^  Richardson  v.  Bates,  8  Ohio  St. 

&  J.  (Md.)  450.  257. 

^•"Courcier  v.  Graham,  1  Ohio  330;  ^'"Abbott    v.    Bosworth,    36    Ohio 

Patterson    v.    Pease,    5    Ohio    190;  St.  605. 


87  EXECUTION   AXD   DELIVERY.  [§§    73,    74 

formal  leases  are  valid  and  void  only  as  to  the  excess.    It  is  invalid 
throughout.^*"' 

§  73.  Rights  of  third  parties. — It  has  been  laid  down  that  a  lease 
reserving  a  lien  which  is  neither  acknowledged  nor  recorded  can  create 
no  lien  on  the  lessee's  goods  for  rent,  even  though  the  creditor  attach- 
ing the  goods  has  actual  notice  of  the  lease.""  The  reservation  of  a 
lien  is  in  effect  a  chattel  mortgage  which  would  not  be  valid  without 
record;  and  notice  of  the  lease  cannot  charge  a  third  person  with 
knowledge  of  a  chattel  mortgage  clause  in  it.  The  contrary  result  was 
reached  in  a  case  where  the  lien  for  rent  was  reserved  on  growing 
crops,  on  the  ground  that  if  the  lease  was  not  valid  the  entire  property 
in  the  crops  remained  in  the  lessor."^  This  reason  is  invalid  and  the 
objection  can  be  removed  in  two  ways.  First,  it  is  possible  to  hold 
the  unrecorded  lease  valid  between  the  parties  for  the  purpose  of  creat- 
ing a  tenancy  and  yet  invalid  to  curtail  the  rights  of  third  persons; 
or,  second,  a  tenancy  might  exist  between  the  parties  by  reason  of 
occupation  and  payment  of  rent,  although  the  written  lease  was  void 
in  toto.  The  court  admit  the  invalidity  of  the  lease  to  the  extent  that 
it  could  be  terminated  before  the  end  of  the  term  by  an  attaching 
creditor  or  grantee  of  the  lessor.  Such  an  admission  seems  incon- 
sistent with  a  decision  allowing  validity  to  the  clause  reserving  a  lien. 

§  74.  Seal  unnecessary. — Notwithstanding  some  early  English 
cases  to  the  contrary,  the  universal  rule  to-day,  both  in  this  country  and 
in  England,  is  that  the  written  document  which  furnishes  evidence  ol 
a  demise  sufficient  to  satisfy  the  statute  of  frauds  need  not  be  undei 
seal."^  By  the  common  law  all  contracts  were  divided  into  agroementu 
by  specialty  and  agreements  by  parol;  there  was  no  such  third  class 
as  agreements  in  writing.  If  they  were  written  and  not  under  seal, 
they  were  parol  agreements.    A  lease  for  years  written  but  not  sealed 

i°«BrohawTi      v.      Van      Ness,      1  191  Pa.   St.  134,  43  Atl.  140;    Cres- 

Cranch  C.  C.  366,  4  Fed.  Cas.  No.  cent   City   &c.    Co.   v.    Simpson,    77 

1920.  Cal.  286,  19  Pac.  426;   Gay  v.  Ihm, 

'"^Kendall  &c.  Co.  v.  Bain,  55  Mo.  3  Mo.  App.  588;   Hunt  v.  Hazelton, 

App.  264.  5  N.  H.  216;   Mayberry  v.  Johnson, 

lo^Buswell  V.  Marshall,  51  Vt.  87.  15  N.  J.  Law  116;  Lake  v.  Campbell, 

^'^  O'Brien  v.  Smith,  37  N.  Y.  St.  18  111.  106;  Hill  v.  Woodman,  14  Me. 

41,  13  N.  Y.  S.  408,  affirmed  without  38;  Farmer  v.  Rogers,  2  Wilson  26; 

opinion   129   N.  Y.   620;    Warren  v.  Beck  v.  Phillips,  5  Burr.  2827;  Bax- 

Leland,   2  Barb.    (N.   Y.)    613,   618;  ter  v.  Browne,  2  W.  Bl.  973;   Good- 

Stoddard  v.  Whiting,  46  N.  Y.  627,  title  v.  Way,  1  Term  R.  735. 
633;    Witman   v.    City    of   Reading, 


§    74]  THE   INSTRUMENT   OF   DEMISE.  88 

was  a  parol  lease  as  well  as  a  lease  unwritten  and  verbal  only.^^'^  The 
question  then  occurs,  what  change  did  the  statute  of  frauds  introduce 
in  the  mode  of  creating  estates  for  less  than  freehold.  It  did  not  jDre- 
scribe  the  manner  in  which  such  estates  should  be  created  or  trans- 
ferred, but  only  declared  that  estates  for  years,  if  made  by  parol  and 
not  put  in  writing,  should  operate  as  estates  at  will.  In  whatever  way, 
therefore,  such  estates  might  have  been  created  prior  to  the  statute, 
other  than  by  parol  and  not  put  in  writing,  they  may  still  be  created. 
Before  the  statute  of  frauds  leases  might  have  been  made  by  writing 
simply,  or  to  speak  technically,  by  a  parol  agreement  reduced  to  writ- 
ing. It  follows  that  after  the  statute  leases  for  more  than  three  years 
could  be  made  by  indenture  of  lease,  or  by  parol  agreement  "in  writ- 
ing signed  by  the  parties."^" 

In  accordance  with  the  foregoing  principles  a  lease  by  a  corporation 
may  be  valid  although  it  is  not  executed  under  its  corporate  seal.  Exe- 
cution of  the  lease  by  an  authorized  agent  of  the  company  is  valid 
and  effectual  to  create  the  term  without  the  use  of  the  corporate  seal. 
An  entry  upon  the  use  and  occupation  of  the  land  under  a  lease  pur- 
porting to  be  made  by  the  agent  of  the  company,  and  paying  rent 
pursuant  to  its  terms  is  sufficient  to  bind  the  corporation  to  the  lease."^ 
It  is  not  necessary  to  the  validity  of  the  lease  that  the  lessee  should 
affix  his  seal  thereto.  His  acceptance  is  abundantly  shown  by  claiming 
under  it.^^^  So,  a  lease  has  been  held  valid  although  it  was  signed 
and  sealed  by  one  party  and  signed  merely  by  the  other.  It  was  con- 
tended that  there  was  no  mutuality  of  contract,  the  tenant  sealing 
his  contract  and  it  not  appearing  that  the  agent  who  sealed  the  in- 
strument for  the  landlord  had  any  authority  under  seal  to  do  so. 
This  objection  was  overruled.  The  landlord,  whether  he  sealed  the 
contract  or  not,  signed  it  and  each  side  became  bound  thereby.  It 
was  the  same  as  if  the  contract  had  been  in  two  instruments,  one 
containing  covenants  or  promises  under  seal  and  the  other  containing 
promises  unsealed,  each  being  a  sufficient  consideration  for  the  other. 
Each  would  be  valid."*    While  a  lease  is  valid  without  a  seal,  the  con- 

""Rann    v.    Hughes,    7    Term    R.  Rawlins    v.    Turner,    1    Ld.    Raym. 

346,  n;  Ballard  v.  Walker,  3  Johns.  736.     To    the    same   effect   see   Rex 

Cas.     (N.    Y.)     60,    65;    Perrine    v.  v.    Inhabitants    of    Little    Dean,    1 

Cheeseman,     11    N.    J.    Law     174;  Str.  555. 

Ford   v.   Campfield,   11   N.   J.   Law  ^  Crawford  v.  Longstreet,  43  N.  J. 

327.  Law  325. 

"*  Mayberry  v.  Johnson,  15  N.  J.  "^  Crescent  City  &c.  Co.  v.  Simp- 
Law    116.     In   an   early   case    Holt,  son,  77  Cal.  286,  19  Pac.  426. 
J.,    ruled   that  all   leases  for   more  "*  Rice  v.   Brown,   81   Me.   56,   16 
than  three  years  must  be  by  deed.  Atl.  334. 


89  EXECUTION    AND    DELIVERY.  [§    75 

sideration  for  the  covenants  may  be  gone  into  in  case  the  seal  is 
omitted.  However,  the  covenant  to  pay  rent  is  supported  by  an 
abundant  consideration  in  the  demise  of  the  premises  and  can  be  en- 
forced even  though  the  premises  fall  into  disrepair  and  become  useless, 
so  that  the  use  becomes  of  no  value.^" 

In  Delaware  it  is  provided  by  statute  that  no  demise,  except  it  be 
by  deed  shall  be  effectual  for  a  longer  term  than  one  year."^  So  it 
was  held  that  a  lease  for  five  years  not  under  seal  was  not  binding 
except  as  a  lease  from  year  to  year.  For  a  breach  of  covenant  oc- 
curring in  the  first  year  the  statute  of  limitations  would  begin  to  run 
at  once  rather  than  from  the  end  of  the  term.^^^ 

§  75.  A  lease  must  be  signed  by  the  lessor,  for  he  stands  in  the 
position  of  a  grantor  who  is  conveying  an  estate.  An  indenture  of 
lease  in  which  the  lessee  binds  himself  to  pay  rent  for  a  certain  term 
does  not  create  any  leasehold  estate  till  it  has  been  properly  executed 
by  the  lessor.  If  the  lessee  takes  possession  of  the  premises  his  occu- 
pation is  as  tenant  at  will  or  by  sufferance  only,  and  he  is  only  liable 
for  rent  for  the  time  he  actually  occupied  them."*  Until  the  lessor 
signs  the  indenture  it  creates  no  estate  or  interest  in  the  land  and 
imposses  no  obligation  upon  either  of  the  parties."^  Where  an  instru- 
ment began  "I  have  leased"  and  followed  by  description  of  property, 
statement  of  term  and  of  terms  with  provisions  for  entry  in  case  of 
non-payment  of  rent,  and  was  signed  by  the  lessee,  it  was  held  that 
this  was  not  a  lease  of  itself,  for  the  lessor  makes  no  written  lease 
until  he  signs  the  paper.  The  action  here  was  by  the  lessor  to  re- 
cover rent  and  he  wished  to  establish  the  validity  of  the  instrument.^-" 
It  has  been  declared  to  be  the  well  established  rule  that  a  lease  must 
be  signed  by  the  lessor  to  be  evidence  of  a  demise,^^^  and  a  signature 
by  an  agent  not  properly  authorized  in  writing  is  not  a  compliance 
with  this  requirement.^-^ 

In  an  action  of  covenant  on  an  indenture  of  lease  for  failure  to 
repair  during  the  term,  it  is  an  answer  that  the  lessor  never  executed 

"^  Hill  V.  Woodman,  14  Me.  38.  "*  Lawrence  v.  Hasbrouck,   46   N. 

"'Laws  1852,  Amended   1893,  ch.  Y.  S.  868,  21  Misc.  R.  39;  Laughran 

120,  §  3.  V.  Smitli,  75  N.  Y.  205. 

"'Stewart     v.     Apel,     5     Houst.  '=« Clemens  v.   Broomfield,  19  Mo. 

(Del.)   189,  S.  C.  4  Houst.  314.  118;   Marlow  v.  Wiggins,  3  G.  &  D. 

"'Nickolls    V.     Barnes,    32    Neb.  504;   Richardson  v.  Giflford,  1  A.  & 

195,  49  N.  W.  342,  reversed  on  re-  E.  52,  55. 

hearing  on  another  point,  39   Neb.  *"  Hyatt  v.  Third  Baptist  Church, 

103,    57    N.    W.    990;     Sigmund    v.  10  Mo.  App.  582. 

Newspaper  Co.,  82  111.  App.  178.  ^Sigmund  v.  Newspaper  Co.,  82 


§•    76]  THE   IXSTRUMENT    OF    DEMISE.  90 

the  indenture,  and  consequently  that  the  term  to  which  the  covenant 
was  annexed  was  never  created.  It  makes  no  difference  that  the 
lessee  occupied  from  year  to  year  for  the  whole  period  of  years  com- 
prised in  the  intended  lease.  In  an  ordinary  indenture  a  covenantee, 
who  is  a  party  to  it,  may  sue  the  covenantor  who  executed  it,  though 
he  never  did,  for  he  is  a  party  though  he  did  not  execute.  But  with 
respect  to  leases  by  indenture,  the  covenants  which  depend  on  the  in- 
terest of  the  lease — such  as  those  to  repair  and  pay  rent  during  the 
term — are  not  obligatory  if  the  lessor  does  not  execute.  The  reason 
is  because  that  interest  has  not  been  created  to  which  the  covenants 
are  annexed,  and  during  which  only  they  operate.  Unless  there  be  a 
term  a  covenant  to  repair  during  it  is  void.  But  with  respect  to 
collateral  covenants,  not  depending  on  the  interest  in  the  land,  it  is 
otherwise,  and  they  are  obligatory.  ^^^  However,  where  the  lessee  has 
occupied  during  the  term,  the  landlord  could  recover  rent  from  him 
in  an  action  of  use  and  occupation. ^^*  Where  all  but  one  of  several 
joint  lessors  signed  the  indenture,  it  would  seem  that  the  reasoning 
of  the  foregoing  cases  would  not  apply,  as  the  lessee  would  acquire 
an  undivided  estate  in  the  land.  In  that  case  the  lessee  should  be 
liable  on  his  covenant  to  pay  rent.^^^ 

It  seems  to  be  valid  for  a  lease  to  be  drawn  in  duplicate  and  to  have 
each  copy  signed  by  one  party  and  then  exchanged ;  the  failure  of  both 
to  sign  the  copy  they  retain  does  not  affect  the  validity  of  the  lease. 
It  is  a  complete  and  obligatory  contract  binding  upon  each  of  the 
parties  as  fully  as  if  each  of  them  had  in  form  signed  and  sealed  both 
of  the  papers.^^® 

§  76.  Errors  in  signature. — A  lease,  whether  in  the  form  of  an  in- 
denture or  a  deed-poll,  is  nevertheless  a  grant  of  an  interest  in  real 
estate,  and  must  conform  in  many  respects  to  the  requirements  for  a 
deed  which  would  be  valid  to  transfer  an  estate  in  fee.  It  must  contain 
a  granting  clause  which  usually  names  the  grantor,  and  such  clause  is 
as  essentially  operative  in  passing  the  estate  as  the  signature  at  the  bot- 
tom of  the  lease.     So  the  instrument  must  be  executed  by  the  same 

111.  App.  178.  (Mass.)    335.     The   dictum    in   this 

^■^  Pitman   v.   Woodbury,   3   Exch.  case  contrary  to  the  law  as  stated 

4;  Swatman  v.  Ambler,  8  Exch.  72;  in  the  text  seems  to  be  wrong. 

Waller  v.   Deane  &c.,  Owen   136,   2  "<' Campau    v.    Lafferty,    43    Mich. 

Brownl.  &  G.  158;  Knipe  v.  Palmer,  429,  5  N.  W.  648;  Fields  v.  Brown, 

2  Wils.  130.  188  111.  Ill,  58  N.  E.  977,  reversing 

'='Codman      v.      Hall,      9      Allen  89  111.  App.  287;  Ames  v,  Moir,  130 

(Mass.)  335.  111.  582,  22  N.  E.  535. 
i=»Codman     v.      Hall,     9     Allen 


I 


91  EXECUTION    AND   DELIVERY.  [§    77 

person  who  is  named  as  grantor  in  the  body  of  the  lease.  Where  an- 
other signs  as  lessor,  it  is  not  a  valid  lease,  for  it  is  just  as  if  the  place 
for  signature  had  been  left  blank. ^^'^  The  granting  clause  also  names 
the  grantee  and  the  estate  passes  to  the  person  or  persons  there  named 
by  virtue  of  the  grant  without  regard  to  the  signatures  which  may  be 
affixed  to  an  indenture  of  lease  as  parties  of  the  second  part.  The  sig- 
nature below  the  name  of  the  lessee  of  one  whose  name  is  not  men- 
tiond  in  the  body  of  the  lease  does  not  make  him  a  co-lessee  and  liable 
for  rent.^^^  But  where  the  first  name  to  the  lease  was  misstated  in 
the  body  of  the  lease,  but  the  signature  was  correct,  it  was  held  this 
did  not  invalidate  the  lease.  Since  the  lessee  intended  to  sign  it  and 
to  make  it  his  lease,  it  was  immaterial  what  he  was  called  in  the 
body  of  the  instrument. ^^®  Where  a  lease  ran  to  two  and  was  executed 
by  both  of  them  as  lessees,  parol  evidence  is  not  admissible  to  affect 
the  rights  of  the  lessor  by  showing  that  one  of  them  signed  as  surety 
for  the  other.  Evidence  to  this  effect  would  be  available  for  the  pur- 
pose of  determining  the  rights  of  the  two  lessees  against  each  other, 
but  not  for  the  purpose  of  altering  the  legal  effect  of  the  written 
instrument.^^*' 

§  77.  Lessee  need  not  sign. — Wliere  a  lease  recites  that  the  lessee  is 
to  pay  a  certain  sum  as  rent  for  the  premises,  his  acceptance  of  the 
lease  makes  him  a  direct  obligor  or  promisor  to  pay  the  rent,  al- 
though he  has  not  signed  or  executed  the  instrument.^"  Fry,  in  his 
text-book  on  Specific  Performance,  cites  cases  where  "an  agreement 
contained  in  a  deed-poll  was  enforced,  notwithstanding  an  objection 
which  was  taken  from  the  unilateral  nature  of  the  instrument,  and 
declares  them  to  represent  the  law.^^-  The  contract  to  pay  the  rent 
reserved  on  the  part  of  the  tenant  is  not  an  express  contract,  but  an 
implied  contract,  or  contract  raised  by  law  from  the  nature  of  the 
transaction.     Such  contracts  are  not  within  the  statute  of  frauds. ^^^ 

'"Roff  v.  Duane,  27  Cal.  565.  307;    Atlantic  Dock   Co.  v.  Leavitt, 

'=*  Evans  v.  Conklin,  71  Hun    (N.  54  N.  Y.  35;    Schmucker  v.  Sibert, 

Y.)    536,  54  N.  Y.  St.  915,  24  N.  Y.  18  Kan.  104. 

S.    1081.      See,    however,    Magee    v.         '^=  Fry  on  Specific  Performance  (2 

Fisher,  8  Ala.   320,  where  the  con-  Am.   Ed.)    202,   *137,   §    298;    Otway 

trary  was  held.  v.  Braithwaite,  1  Finch  405;  Butler 

i=«Montany€   v.   Wallahan,   84   111.  v.    Powis,    2    Coll.    C.    C.    156.     To 

355,  same  effect  see  Old  Colony  R.  Corp. 

i^Hobbs  V.  Batory,  86  Md.  68,  37  v.  Evans.  6  Gray   (Mass.)   25. 
Atl.  713.  '''Goodwin    v.     Gilbert,    9    Mass. 

"'McParlane  v.  Williams,  107  111.  510;  Fletcher  v.  McFarlane,  12  Mass. 

33;    Kershaw  v.   Kershaw,   102   111.  43;  Pike  v.  Brown,  7  Cush.  (Mass.) 


77] 


THE   INSTRUMENT    OF    DEMISE. 


92 


The  doctrine  has  been  broadly  laid  down  that,  where  land  is  con- 
veyed by  deed-poll,  and  the  grantee  enters  under  the  deed,  certain 
duties  being  reserved  to  be  performed,  as  no  action  lies  against  the 
grantee  on  the  deed,  the  grantor  may  maintain  assumpsit  for  the  non- 
performance of  the  duties  reserved  and  the  promise,  being  raised  by 
the  law,  is  not  within  the  statute  of  frauds.^^*  Occupation  under  the 
lease  is  not  indispensible  to  the  recovery  if  only  the  lease  has  been 
accepted.  "It  is  enough,"  said  the  Massachusetts  court,  in  deciding 
this  question,  "that  they  accepted  the  conveyance  which  gave  them  the 
right  of  immediate  and  exclusive  occupation.  The  law  would  imply 
from  such  acceptance  a  promise  to  comply  with  the  terms  of  the  lease, 
and  such  a  promise  is  not  within  the  statute  of  frauds."^^^  The  rea- 
son is,  the  estate  vests  the  moment  the  lease  is  accepted,  and  the 
lessee  in  taking  the  estate  takes  it  cum  onere,  and  accordingly  must 
pay  the  rent  so  long  at  least  as  he  holds  it.^^^  Where  there  has  been 
both  acceptances  of  the  lease  and  entrance  into  possession  liability 
would,  of  course,  follow,  and  a  lessee  by  accepting  a  lease  under  seal 
and  entering  into  the  occupation  of  the  premises  becomes  liable  for 
the  performance  of  the  conditions  of  the  lease  although  the  same  is 
not  signed  by  him.  The  action  against  him  for  failure  to  perform 
would  be  assumpsit.^^^ 

An  offer  in  writing  to  allow  a  tenant  to  remain  in  possession  for 
two  years,  rent  free,  made  and  signed  by  the  owner  of  the  land,  was 
held  to  be  a  lease  which  the  tenant  accepted  by  remaining ;  and  it  was 
not  necessary  for  it  to  be  signed  by  the  tenant.  So  that  at  the  termi- 
nation of  the  two  year  period,  the  tenant  could  be  evicted  without  any 
notice  to  quit,  he  being  in  the  position  of  a  tenant  holding  for  a  fixed 
term.^^^ 


133;  Kabley  v.  Worcester  &c.  Co., 
102  Mass.  392;  Providence  &c. 
Union  v.  Eliott,  13  R.  I.  74;  Trap- 
nail  v.  Merrick,  21  Ark.  503;  Sage 
v.  Wilcox,  6  Conn.  81;  Allen  v. 
Pryor,  3  A.  K.  Marsh.  (Ky.)  305; 
Browne  on  Statute  of  Frauds,  §  166. 
,"*  Goodwin  v.  Gilbert,  9  Mass, 
510;  Providence  &c.  Union  v.  Eliott, 
13  R.  I.  74;  Evans  v.  Conklin,  71 
Hun  (N.  Y.)  536,  54  N.  Y.  St.  915, 
24  N.  Y.  S.  1081;  Loughran  v. 
Smith,  11  Hun  (N.  Y.)  311;  Fitton 
V.  Inhabitants  of  Hamilton  City,  6 


Nev.  196;  Natural  Gas  Co.  v.  Phila- 
delphia Co.,  158  Pa.  St.  317,  27  Atl. 
951;  Weaver  v.  Southern  Oregon 
Co.,  31  Ore.  14,  48  Pac.  167. 

"°  Kabley  v.  Worcester  &c.  Co., 
102  Mass.  392. 

""Providence  &c.  Union  v.  Eliott, 
13  R.  I.  74. 

"^  First  Cong.  &c.  Soc.  v.  Town  of 
Rochester,  66  Vt.  501,  29  Atl.  810; 
Henderson  v.  Virden  Coal  Co.,  78 
111.  App.  437. 

»«Hulett  v.  Nugent,  71  Mo.  131. 
See  §  255. 


93  EXECUTION    AND   DELIVERY.  [§§    78,    79 

§  78.  Where  the  parties  contemplated  the  signing  of  an  indenture 
of  lease  by  both  parties,  and  it  was  signed  by  the  lessor  only,  and  the 
lessee  had  not  taken  possession  under  it,  it  was  held  by  the  New  York 
Supreme  Court  that  he  was  not  liable  for  rent.^'^  But  the  general 
rule  of  law  would  be  that  a  party  who  enters  into  possession  of  property 
as  tenant,  after  promising  to  sign  a  written  lease,  cannot  rely  on  the 
fact  that  he  did  not  sign  to  relieve  himself  from  the  burdens  imposed 
by  the  lease.^*°  This  is  because  there  is  no  adequate  reason  why  an 
original  intention  to  have  the  lessees  sign  the  lease  would  prevent  its 
taking  effect  as  a  deed-poll  after  it  had  been  accepted.  The  absence 
of  the  lessee's  signature  would  afford  evidence  that  he  had  not  accepted 
the  lease,  but  if  it  be  shown  that  the  instrument  was  accepted,  occu- 
pation and  privity  of  estate  would  have  the  ordinary  effect  in  fixing 
liability  on  the  lessees.  Thus,  in  a  lease  to  four  lessees,  which  had 
been  signed  by  two  only,  it  was  argued  that  an  action  could  not  be 
maintained  on  the  covenants  of  the  lease  against  the  two  defendants 
who  executed  it,  because  it  was  apparent  that  it  was  intended  that  all 
four  lessees  should  execute  it,  and  it  did  not  purport  to  be  a  lease  to 
two.  But  the  lessees  could  have  accepted  the  demise  on  the  terms  and 
conditions  contained  in  the  indenture  without  executing  it.  In  such 
a  case  the  indenture  would  take  effect  as  a  deed-poll,  and  a  promise 
would  be  implied  on  the  part  of  the  lessees  to  perform  the  stipulations 
expressed  in  the  indenture  on  their  part  to  be  performed.^"  If  the 
transfer  of  land  by  a  lease  is  unconditional,  the  covenants  intended  to 
be  undertaken  by  the  lessee  by  his  signing  and  sealing  the  instru- 
ment are  independent.  The  right  of  the  lessor  to  have  such  cove- 
nants executed  by  the  lessee  might  be  waived  by  him.  By  putting  the 
lease  on  record  and  treating  it  as  in  all  respects  valid  to  pass  the  land 
described,  the  lessor  must  be  regarded  as  waiving  his  right  to  the 
lessee's  signature.^*^ 

§79.  Acceptance  of  lease. — Wliere  lessees  have  accepted  a  lease, 
their  liability  to  pay  rent  is  not  qualified,  or  taken  away,  by  proof 
that  they  never  actually  occupied  the  premises.  It  is  enough  tliat 
they  accepted  the  conveyance,  which  gave  them  a  right  of  immediate 
and  exclusive  occupation.     The  law  would  imply,  from  such  accept- 

"» Adams  v.  Boelger,  15  Misc.  R.  John's  &c.  Soc,  125  Mass.  565;  Lib. 

(N.  Y.)  140,  71  N.  Y.  St.  823,  36  N.  bey  v.  Staples,  39  Me.  166. 
Y.  S.  801.  "'  Burkhardt  v.  Yates,   161   Mass. 

""  Bonaparte    v.    Thayer,    95    Md.  591,  37  N.  E.  759. 
548,    52    Atl.    496;     Carroll    v.    St.         i«  Libbey  v.  Staples,  39  Me.  166. 


§    79]  THE  INSTRUMENT  OF  DEMISE.  94 

ance  a  promise  to  comply  with  the  terms  of  the  lease^"  and  such  a 
promise  is  not  within  thp  statute  of  frauds,^**  In  contemplation  of 
law  they  hold  the  premises  whether  they  occupy  them  or  not.^*^  A 
lease  signed  by  the  lessor  and  accepted  by  the  lessee  has  the  same 
force  and  effect  as  it  would  have  if  signed  by  the  lessee.  But  such  is 
not  the  case  where  there  is  no  evidence  tending  to  prove  that  the 
lease  was  accepted  by  the  lessee.  If  he  had  accepted  the  lease  and 
had  occupied  the  premises  under  it,  the  law  would  imply  a  promise 
to  pay  the  rent  reserved,  although  the  lessee  had  never  signed  the 
lease.  In  the  absence  of  proof  of  acceptance,  the  lease  would  not 
be  binding  on  him."*'  Where  the  lessee  signed  and  retained  a  lease 
tendered  by  the  lessor  and  prepared,  signed,  and  sent  a  duplicate  to 
the  lessor,  there  was  held  to  be  an  acceptance,  even  though  the  lease  was 
accompanied  by  a  letter  indicating  unwillingness  to  pay  the  rent  re- 
served."^ 

The  presumption  that  a  lease  beneficial  in  its  nature  has  been  ac- 
cepted can  only  be  availed  of  when  it  was  in  fact  beneficial;  which 
depends  on  the  circumstances  of  the  entire  case."^  The  presumption 
of  assent  is  not  founded  on  the  face  of  the  instrument,  but  in  the 
nature  and  circumstance  of  the  entire  case ;  and  it  is  an  indispensable 
inquiry,  whether  the  person  claimed  to  assent  derives  a  benefit  from 
the  transaction.^*^ 

While  the  construction  of  a  written  lease  should  be  passed  upon  by 
the  court,  it  is  proper  to  leave  to  the  jury  the  question  whether  an 
unexecuted  instrument  was  accepted  by  the  lessees.  After  the  parties 
had  made  an  oral  agreement  the  landlord  prepared  a  writing  and  sent 
it  to  the  tenants  for  their  signature.  It  was  submitted  to  the  jury 
whether  this  agreement  was  accepted  by  the  lessees,  and  this  was  the 
proper  course  to  take.  The  construction  of  a  written  document  is  ex- 
clusively the  province  of  the  court,  but  when  the  making  of  such  con- 
tract is  in  dispute  it  is  the  province  of  the  Jury  to  say  whether  it  is 
established.^^" 

"'Guild     v.     Leonard,     18     Pick.  "^  Leiter  v.  Pike,  127  111.   287,  20 

(Mass.)    511,   516;    Goodwin   v.   Gil-  N.  E.  23,  affirming  26  111.  App.  530. 

bert,  9  Mass.  510;  Kabley  v.  Worces-  ""  Camp  v.  Camp,  5  Conn.  291,  300. 

ter  &c.  Co.,  102  Mass.  392.  ""  Thompson  v.  Leach,  2  Vent.  198, 

'"Felch     v.     Taylor,      13      Pick.  206;    Mutton's   Case,    2    Leon.    223; 

(Mass.)    133;    Kabley  v.   Worcester  Treadwell  v.  Bulkley,  4  Day  (Conn.) 

&c.  Co.,  102  Mass.  392.  395. 

i«  Pinero  v.  Judson,  6  Bing.  206.  ^^  Folsom  v.  Cook,  115  Pa.  St.  539, 

"'  Castro  v.  Gaffey,  96  Cal.  421,  31  9  Atl.  93. 
Pac,  363. 


95  EXECUTION   AND   DELIVERY.  [§§    80,    81 

§  80.  Form  of  action. — Where  a  leasehold  estate  has  been  created 
by  a  deed  poll  executed  by  the  lessor  and  accepted  by  the  lessee,  as- 
sumpsit is  the  proper  form  of  action  by  which  to  compel  performance 
by  the  lessee  of  the  undertakings  placed  upon  him.^^^  The  rent  could 
be  recovered  of  him  in  an  action  of  debt.  In  the  case  under  consid- 
eration, the  lease  is  not  in  the  form  of  an  indenture,  and  is  neither 
signed  or  sealed  by  the  tenant.  By  taking  possession  under  it  the 
tenant  accepted  the  lease  and  became  bound  to  carry  out  and  perform 
those  provisions  of  it  which  rested  on  him  to  perform.  But  such  ac- 
ceptance did  not  make  the  lease  an  instrument  under  the  seal  of  the 
tenant.  In  law  it  was  similar  to,  and  no  more  than,  a  written  ac- 
ceptance of  its  provisions,  signed  by  the  tenant  but  not  under  his 
seal.1^2 

So,  in  such  case  the  lessor  cannot  maintain  an  action  of  covenant 
against  the  lessee,  because  the  general  rule  is  that  covenant  will  lie 
only  where  the  instrument  is  actually  signed  and  sealed  by  the  party 
or  by  his  authority. ^^^  The  doctrine  with  regard  to  covenants  run- 
ning with  the  land  has  no  application  to  confer  a  right  to  sue  in  cove- 
nant. No  such  covenants  can  be  created  or  assigned  except  by  deed. 
Their  relation  to  the  land  does  not  convert  them  into  covenants, 
but  only  characterizes  them  as  contracts  which  concern  the  realty.^'* 

§  81,  An  undisclosed  principal  is  not  liable  as  lessee  on  the  cove- 
nants of  a  lease  executed  by  its  agent  by  reason  of  its  subsequent  occu- 
pation of  the  premises.  In  the  case  where  this  doctrine  was  an- 
nounced there  was  no  evidence  that  either  party  understood  that 
the  principal  was  to  occupy  as  lessee  under  the  lease.  The  subsequent 
conduct  of  the  parties  was  not  inconsistent  with  holding  the  agent 
to  be  the  lessee  under  the  lease,  and  there  was  nothing  which  could 
control  the  terms  of  the  lease,  or  show  that  the  principal  was  bound 
by  the  covenants.^^^  The  general  principles  of  the  law  of  agency  as 
to  the  execution  of  an  instrument  under  seal  by  an  agent  apply  in  a 

iBi  Providence  &c.  Union  v.  Eliott,  9  Mass.  510;  Gale  v.  Nixon,  6  Cow. 

13  R.  I.  74;  Trapnall  v.  Merrick,  21  (N.  Y.)  445;  Johnsons  v.  Muzzy,  45 

Ark.   503;    First  Cong.   &c.    Soc.   v.  Vt.    419;    First    Cong.    &c.    Soc.    v. 

Town  of  Rochester,  66  Vt.  501,   29  Town  of  Rochester,  66  Vt.  501,   29 

Atl.  810;  Johnsons  v.  Muzzy,  45  Vt.  Atl.  810;   Burnett  v.  Lynch,  5  B.  & 

419.  C.  589;    Contra  Finley  v.  Simpson, 

^"  First  Cong.  &c.  Soc.  v.  Town  of  22  N.  J.  Law  311. 
Rochester,  66  Vt.  501,  29  Atl.  810.  '"  Trustees  Section  16  v.  Spencer, 

^='  Trustees  Section  16  v.  Spencer,  7  Ohio  493. 
7  Ohio  493;  Hinsdale  v.  Humphrey,         "'Haley  v.  Boston  Belting  Co.,  140 

15  Conn.   431;    Goodwin  v.   Gilbert,  Mass.  73,  2  N.  E.  785. 


§    81]  THE   INSTRUMENT   OF  DEMISE.  96 

case  where  a  lease  is  executed  by  one  person  in  behalf  of  another.  A 
lease  which  was  made  to  the  agent  as  lessee  and  signed  in  his  in- 
dividual name  and  not  as  agent,  recited  the  facts  of  the  agency  in  the 
body  of  the  instrument.  It  was  held  that  the  agent  was  liable  on  the 
instrument  and  the  principal  was  not.^^^  If  the  form  of  ihe  lease 
makes  the  agent  the  lessee,  the  covenants  in  the  deed  can  only  be 
enforced  against  the  party  who,  upon  the  face  of  the  instrument,  is 
the  covenantor,  although  it  appears  by  extrinsic  proof  that  he  acted 
as  the  agent  for  another. ^^^  Thus,  where  an  agent  executed  a  lease  as 
lessor  in  behalf  of  an  undisclosed  principal,  the  principal  could  not 
maintain  an  action  of  covenant  against  the  lessee  for  the  rent.  The 
rule  is  well  established  that  an  action  upon  a  sealed  instrument  must 
be  brought  by  and  in  the  name  of  the  person  who  is  a  party  to  the  in- 
strument, and  that  a  stranger  to  the  instrument  cannot  maintain  an 
action  upon  it.^^^  Furthermore,  the  owner  of  premises  cannot  main- 
tain distress  for  rent  under  a  lease  executed  by  his  agent  in  the 
agent's  own  name.  The  tenant  holds  under  the  agent  as  landlord  and 
not  under  the  principal.  It  makes  no  difference  that  the  agent  wrote 
the  word  "agent"  under  his  signature.^^^  Nor  can  a  lessee  deny  the 
title  of  his  lessor  because  the  latter  described  himself  as  agent  in  ex- 
ecuting the  lease. ^®^  Wliere  one  joint  owner  acting  for  all  executed 
a  lease  and  signed  himself  agent  without  stating  his  principal,  the 
lease  ran  to  the  agent  alone  as  lessor.^^^ 

An  attaching  creditor  of  a  landowner  would  prevail  over  a  lessee 
holding  under  a  lease  improperly  executed  by  an  agent  of  the  owner. 
The  lease  described  the  parties  as  principal  and  agent  but  recited 
that  the  agent  had  leased,  etc.,  and  was  signed  by  the  agent  in  his 
own  name.^''^  Eecitals  of  the  agency  will  not  avail  against  the  ef- 
fective granting  portion  of  the  lease  that  the  agent  has  leased,  etc. 
So  a  bill  to  cancel  a  lease  was  allowed,  though  the  lease  began  with  a 
recital  of  the  agency  and  was  signed  by  the  agent  as  representing  an 
estate.  The  recitals  of  the  agency  are  mere  descriptio  personae,^^^ 
which  serve  to  identify  the  parties  but  do  not  change  the  legal  effect 
of  the  instrument, 

"» Kiersted  v.  Orange  &c.  R.  Co.,        "» Seyfert  v.  Bean,  83  Pa.  St.  450. 
69  N.  Y.  343.  i««  Bedford  v.  Kelly,  61  Pa.  St.  491. 

"'Taft  v.  Brewster,   9  John.    (N.        ^^  Holt  v.  Martin,  51  Pa.  St.  499. 
Y.)  334;  Stone  v.  Wood,  7  Cow.  (N.        i^=  Murray  v.   Armstrong,    11    Mo. 

Y.)    453;   Guyon  v.  Lewis,  7  Wend.  209. 
(N.  Y.)  26.  "3  Potter  v.  Bassett,  35  Mo.  App. 

'=*Schaefer  v.   Henkel,   75   N.   Y.  417. 
378. 


07  EXECUTION"    AND   DELIVERY,  [§83 

However,  after  a  lessee  has  occupied  the  premises  during  the  term 
under  a  lease  executed  by  an  agent  as  lessor,  he  cannot  deny  the 
validity  of  the  demise  when  sued  for  rent,  even  though  it  was  not  a 
good  conveyance  against  the  principal.  In  the  case  where  this  hold- 
ing was  made  the  agent  had  assigned  the  lease  and  the  principal  had 
conveyed  the  reversion  to  the  plaintiff  who  brought  suit  for  the  rent 
so  that  he  combined  all  rights  in  himself.^''*  Furthermore,  one  acting 
in  a  representative  capacity  cannot  object  that  his  predecessor  did 
not  properly  execute  a  lease  in  behalf  of  the  estate.  If  it  can  be 
shown  that  the  person  acting  as  administrator  intended  to  bind  the 
estate  by  the  lease,  it  is  not  open  to  the  person  who  succeeds  as  ad- 
ministrator to  object  that  the  lease  was  not  properly  executed.^"^ 

Where  lessees  acting  for  a  lodge  were  described  in  the  caption  as 
^'trustees"  but  executed  in  their  individual  names,  and  in  the  body 
of  instrument  covenanted  to  pay  rent  without  using  any  words  to 
show  an  intention  to  bind  their  lodge,  it  was  held  they  were  per- 
sonally liable  and  the  words  "trustees"  was  merely  descriptio  per- 

§  82.  leases  by  corporations. — The  liability  of  parties  to  a  lease 
must  be  determined  by  the  terms  of  the  written  instrument  which 
they  execute.  Accordingly  it  has  been  held  that  a  lessee,  in  the  face 
of  the  terms  of  a  written  lease,  cannot  show  that  he  was  acting  as 
agent  for  a  proposed  corporation  and  thus  by  parol  relieve  himself 
of  liability.  He  must  also  show  fraud  or  misrepresentation.^"^  But 
the  opposite  result  was  reached  where  the  lease  was  by  a  de  facto 
corporation.  Covenants  in  the  lease  were  expressed  to  be  by  it  and 
the  signature  was  by  the  corporation  through  its  trustees,  so  it  did 
not  create  any  liability  on  the  trustee  signing  but  a  corporate  lia- 
bility.^''® In  another  case  a  lease  by  a  corporation  was  signed  by  its 
secretary  in  his  own  name,  followed  by  a  statement  of  his  represent- 
ative capacity,  and  on  the  margin  was  written  the  initials  of  the  name 
of  the  corporation.  This  was  held  to  be  a  valid  lease  by  the  corpora- 
tion. It  was  simply  for  the  court  to  determine,  as  a  matter  of  law, 
whether,  on  its  face,  it  was  the  contract  of  the  corporation.^""  It 
has  been  held,  also,  that  a  lease  by  a  corporation  signed  and  sealed  in 

*" Kendall    v.    Garland,    5    Gush.  "'Sanders  v.   Sharp.   153   Pa.   St. 

(Mass.)  74.  555,  25  Atl.  524. 

»«» Russell  V.  Erwin,  41  Ala.  292.  '"«  Hancock  v.  Yunker,  83  III.  208. 

'•"Stobie    V.    Dills,    62    111.    432;  ""West  Side  &c.  Co.  v.  Gonnecti- 

Seaver  v.  Goburn,  10  Gush.  (Mass.)  cut  &c.  Ins.  Go.,  186  111.  156,  57  N.  E. 

324.  839,  85  111.  App.  497. 

Jones  L.  &  T.— 7 


§    83]  THE   INSTRUMEXT    OF    DEMISE.  98 

the  corporate  name  by  a  proper  officer  is  not  invalid,  because  in  the 
beginning  the  lease  is  described  as  an  indenture  made  by  an  indi- 
vidual officer  of  the  corporation. ^''°  These  decisions  accept  a  lax  rule 
as  to  the  execution  of  instruments,  and  such  a  tendency  can  hardly  be 
regarded  with  favor. 

§  83.  Delivery  is  a  question  of  intent  and  it  depends  on  whether 
the  parties  meant  it  to  be  a  delivery  to  take  effect  immediately. 
Where  a  lease  was  signed  by  both  parties  and  then  put  in  the  hands 
of  the  lessee  to  procure  an  endorsement  for  payment  of  rent,  it  was 
held  there  was  no  delivery  of  the  lease  as  the  deed  of  the  lessee  and 
the  instrument  was  not  binding  since  the  proposed  guaranty  could 
not  be  obtained.^^^  Yet  the  general  rule  regarding  escrows  is  that 
a  lease  or  other  instrument  cannot  be  delivered  in  escrow  to  one  of 
the  contracting  parties.  That  rule  is  that  if  the  deed  is  absolute  on 
its  face,  parol  evidence  cannot  be  admitted  to  prove  that  the  parties 
agreed  it  should  be  conditional.^^^ 

Delivery  in  a  popular  sense  implies  an  actual  transfer  of  posses- 
sion from  one  person  to  another  and  such  a  transfer  made  uncondi- 
tionally constitutes  a  valid  delivery.  But  a  manual  transfer  of  the 
instrument  in  writing,  required  by  the  statute  of  frauds,  is  not  al- 
ways necessary.  If  the  grantee,  by  formal  assent,  or  unequivocal 
acts,  such  as  entering  into  possession,  treats  the  writing  as  in  his 
possession,  it  is  sufficient  to  constitute  a  delivery.^"^  The  exact  time 
when  delivery  takes  place  is  important,  because  a  lease  takes  effect 
as  a  binding  instrument  from  the  time  of  its  delivery  and  not  from 
its  date,  or  from  the  time  when  the  signatures  were  affixed  to  it.^^* 
The  technical  requirements  for  the  execution  of  an  instrument  in- 
cludes delivery  in  addition  to  signing,  if  it  be  a  simple  contract,  and 
delivery  of  the  signed  and  sealed  instrument,  if  it  be  a  specialty.  This 
rule  applies  equally  to  indentures  signed  by  both  parties  and  to  deeds 
poll  which  are  signed  and  sealed  by  only  one.  So  in  strictness  it  is 
true  that  a  lease,  though  signed  by  both  parties,  does  not  take  effect 
till  it  has  been  delivered.^^^     But  after  both  parties  have  signed  an 

""  Douglass  V.   Branch   Bank  &c.,        "^  De   Ronde  v.    Olmsted,   5   Daly 

19  Ala.   659;    Northwestern  &c.   Co.  (N.  Y.)  398. 
V.  Brant,  69  111.  658.  '''  Stetson  v.  Briggs,  114  Cal.  511, 

"'Jordan  v.  Davis,  108  111.  336.  46  Pac.  603;   Davidson  v.  Ellmaker, 

"-Browning  v.   Haskell,    22   Pick.  84  Cal.   21.  23  Pac.  1026;   Witthaus 

(Mass.)  310.  V.  Starin,  12  Daly  (N.  Y.)  226. 

"^  Witman  v.  City  of  Reading,  191 
Pa.  St.  134,  43  Atl.  140. 


99  PARTIES  TO  LEASES.  [§  84 

indenture  of  lease  it  is  a  sufficient  delivery  to  leave  the  instrument 
with  the  scrivener  who  prepared  it  for  him  to  make  a  copy  for  the 
lessee.^'"  So  where  a  lease  is  signed  by  both  parties  and  retained  by 
one,  it  is  immaterial  whether  the  other  has  a  counterpart  or  not  as 
long  as  he  is  content  to  be  without  one.  Xo  objection  can  be  made 
on  the  score  that  the  instrument  was  invalid  for  lack  of  due  delivery, 
but  as  long  as  the  tenant  has  not  entered  into  possession,  delivery 
becomes  material  on  the  question  whether  the  lease  became  operative 
or  not.^^^  An  agreement  between  two  parties  in  which  the  former 
agrees  to  give  the  latter  a  lease  of  certain  land,  for  a  stipulated  rent, 
as  soon  as  he  shall  comply  with  certain  conditions,  manifestly  pre- 
pared and  intended  to  be  executed  by  both,  but  signed  by  the  lessor 
alone,  with  the  day  of  the  month  left  blank,  and  never  signed  or  at- 
tempted to  be  signed  by  the  lessee  and  never  delivered  to  him  during 
the  lessor's  life,  is  an  inchoate  instrument,  passing  to  the  lessee  no 
interest  either  legal  or  equitable.^"*  Where  a  lease  was  signed  by  the 
lessees,  in  whose  favor  it  was  drawn,  but  was  never  delivered  to  them 
and  was  assigned  by  them  at  the  request  of  the  lessor's  agent,  and 
delivered  to  the  agent,  and  the  first  installment  of  rent  was  received 
by  the  lessor  from  the  assignee,  the  original  lessees  never  became 
obligated  to  pay  rent.^^'' 

Eetention  of  possession  of  a  lease  by  the  lessor  is  not  conclusive 
evidence  that  it  has  not  been  delivered  so  as  to  become  operative.  A 
finding  that  it  is  duly  "executed"  will  be  construed  to  include  its  de- 
livery.^^"  The  use  of  the  word  "execute"  will  not,  however,  import  a 
delivery  when  it  is  used  as  a  synonym  of  the  word  "sign."^^^ 

.    Ill,     Parties  to  Leases. 

§  84.  In  general. — In  regard  to  the  execution  of  every  lease  there 
may  arise  questions  as  to  the  capacity  of  the  person  to  enter  into 
such  a  contractual  relation,  and  as  to  the  authority  of  the  alleged 

"« Reynolds  v.  Greenbaum,  80  111.         '"  Davidson   v.   Ellmaker,   84   Cal. 

416.  21,  23  Pac.  1026.     The  execution  of 

''"  David  Stevenson  &c.  Co.  v.  Cul-  a  lease  may  be  proved  in  an  action 

bertson,  41  N.  Y.  S.  1039,  18  Misc.  by  the  lessor  for  rent  by  the  pro- 

R.  (N.  Y.)  486.  duction  of   the  certified   copy   of  a 

"*  Howard    v.    Carpenter,    11    Md.  judgment   for   possession   recovered 

"  259.  by   lessee   against  landlord.    McCoy 

"» Stetson  v.  Briggs,  114  Cal.  511,  v.  Oldham,  1  Ind.  App.  372,  27  N.  E. 

46  Pac.  603.  647. 

'^"Oneto  v.  Restano,  89  Cal.  63,  26 
Pac.  788. 


?    84]  THE    INSTRUMENT    OF    DEMISE.  100 

lessor  to  convey  by  demise  the  particular  premises  covered  by  the 
lease.  The  first  of  these  questions  has  to  do  with  the  effect  of  some 
personal  disability  of  one  of  the  contracting  parties,  such  as  infancy, 
insanity,  or  coverture.  The  second  question  deals  with  the  rights  of 
persons  acting  in  a  representative  capacity,  such  as  an  agent,  execu- 
tor, or  trustee.  It  would  also  include  the  right  of  a  husband  to  make 
a  lease  of  lands  belonging  to  his  wife,  the  right  of  one  tenant  in  com- 
mon to  convey  the  community  lands  and  the  extent  to  which  a  cor- 
poration may  alienate  its  lands  by  this  mode  of  conveyance.  The 
capacity  to  execute  a  lease  depends  in  general  upon  the  capacity  to 
contract,  which  depends,  not  upon  the  peculiar  doctrines  of  the  law 
of  landlord  and  tenant,  but  upon  the  law  of  infancy,  the  law  of  con- 
tracts, or  the  law  of  husband  and  wife,  as  the  case  may  be.  The  ques- 
tion of  authority  is  complicated  by  the  doctrine  of  estoppel,  which 
precludes  a  lessee  in  the  full  enjoyment  of  possession  from  denying 
the  validity  of  the  lessor's  title.  Although,  without  any  rightful  title 
or  interest  in  the  land,  a  person  who  can  transfer  the  possession  alone 
can  execute  a  lease  which  will  be  binding  on  the  lessee  as  long  as  he 
continues  in  undisturbed  possession  of  the  premises.  From  this  rule, 
the  result  may  obviously  be  deduced  that  a  person  who  has  any  right- 
ful title  and  interest  in  real  estate,  coupled  with  a  present  possession, 
may  make  a  valid  demise  of  such  property  to  the  extent  of  his  own 
interest.  An  estate  in  fee  is  not  necessary  to  enable  one  to  execute 
a  valid  lease.^*-  The  actual  ownership  of  the  premises  is  only  one 
element  to  be  considered  in  determining  the  question  whether  the  re- 
lation of  landlord  and  tenant  exists  between  parties.  One  may  be  a 
landlord  who  is  not  an  owner.^^^  So  in  the  absence  of  restrictive 
covenants  a  valid  lease  may  be  made  by  a  tenant  for  life^^*  or  by  a 
tenant  for  years. 

In  accordance  with  these  principles  a  joint  lease  may  be  made  by 
adjoining  owners  who  hold  severally  and  not  in  common.  Such  a 
lease  of  mining  land  could  reserve  as  rent  a  royalty  to  be  paid  jointly 
to  the  lessors,  and  each  lessor  would  be  entitled  to  share  equally  in  the 
royalty  thus  reserved,  regardless  of  what  portion  of  the  mine  the  ore 
is  taken  from.  The  court  said  in  the  opinion:  "No  case  has  been 
cited,  and  I  have  found  none  in  which  distinct  contiguous  properties 

"=  Strickland  v.  Stiles,  107  Ga.  308,  man,  22  Tex.  Civ.  App.  299,  54  S.  W. 
33  S.  E.  85;  Goldsmith  v.  Wilson,  68     246. 

Iowa  685,  28  N.  W.  16;   Lindsey  v.         ^'=  Lindsey  v.  Leighton,  150  Mass. 
Leighton.   150   Mass.    285,    22   N.   E.     285,  22  N.  E.  901,  15  Am.  St.  199. 
901,  15  Am.  St.  199;  Cross  v.  Free-         '^*  Sykes  v.  Benton,  90  Ga.  402,  17 

S.  E.  1002. 


101  PARTIES  TO  LEASES,  [§  85 

of  differont  owners  have  been  jointly  leased  as  in  this  case;  though 
leases  by  tenants  in  common  have  been  of  frequent  occurrence.  Yet 
I  have  no  doubt  that  the  lease  in  question  here  was,  and  is,  a  valid 
lease,  as  seems  to  be  conceded  by  both  parties  who  differ  only  as  to 
its  effect.""^ 

The  estoppel  of  a  tenant  to  deny  his  landlord's  title  must  be  dis- 
tinguished from  the  ancient  doctrine  as  to  the  transfer  of  title  by 
estoppel.  That  doctrine  was  that  where  one  purported  to  convey 
premises  in  which  he  had  no  title,  any  interest  which  the  grantor 
subsequently  acquired  in  the  premises  inured  to  the  benefit  of  the 
grantee  whose  claims  the  grantor  was  by  estoppel  precluded  from 
denying.  This  doctrine  applied  with  equal  force  in  case  of  a  transfer 
by  way  of  lease,^^"  as  in  a  conveyance  of  the  fee,  and  the  following 
illustrative  case  is  put  by  Lord  Eaymond :  "As  if  a  man  makes  a 
lease  by  indenture  of  D.  in  which  he  hath  nothing  and  afterward  pur- 
chases D,  in  fee,  and  afterward  bargains  and  sells  it  to  A.  and  his 
heirs;  A.  shall  be  bound  by  this  estoppel;  and  where  an  estoppel 
works  on  the  interest  of  the  lands,  it  runs  with  the  land  into  whose 
hands  soever  the  land  comes."^^'^  It  was  laid  down  in  an  early  Xew 
York  case  "that  a  man  shall  never  be  permitted  to  claim  in  opposition 
to  his  deed ;  and  that  if  a  man  makes  a  lease  of  land  by  indenture, 
which  is  not  his,  .  .  .  and  he  afterward  purchases  the  land,  he 
shall  notwithstanding  be  bound  by  his  deed  and  not  be  permitted  to 
aver  he  had  nothing."^ ^^ 

§  85.  The  general  doctrine  of  the  law  is  that  a  person  dispos- 
sessed cannot  make  a  valid  conveyance,  being  disabled  both  by  the 
common  law  and  by  the  effect  of  the  statute,  32  Hen.  VIII,  ch.  9. 
That  this  objection  applies  as  well  in  cases  of  conveyances  of  terms 
for  years  as  of  estates  in  fee  was  long  ago  determined^^"  and  more 
recent  cases  show  that  courts  hold  themselves  as  much  bound,  as  at 
any  previous  period,  to  maintain. the  principle.^^"  However,  the  state 
cannot  be  disseized,  and  therefore  the  state  may  make  a  valid  lease 

^"  Higgins   v.    California  &c.    Co.,  Wms.   Real   Property  329,   1   Wash. 

109  Cal.  304,  41  Pac.  1087.  Real  Property  (3d  ed.)  399. 

'^"Gilman  v.  Hoare,   1   Salk.  275;  '"  Trevivan  v.   Lawrence,   1   Salk. 

Skidmore  v.   Pittsburg  &c.   R.   Co.,  276. 

112  U.  S.  33,  5  Sup.  Ct.  9;  McKenzie  '"^Jackson  v.   Bull,   1    Johns.   Cas. 

V.  City  of  Lexington,  4  Dana  (Ky.)  (N.  Y.)   81.  90. 

129;  Bank  of  Utica  v.  Mersereau,  3  '"^Partridge  v.  Strange,  1  Plow.  77. 

Barb.    ch.    (N.    Y.)    528;    Austin    v.  '""Doe  v.  Evans,  1  M.  G.  &.  S.  717, 

Ahearne,    61    N.    Y.    6;    Jackson   v.  50  E.  C.  L.  716;   Doe  v.  Mclnnis,  6 

Murray,    12    Johns.     (N.    Y.)     201,  U.  C.  Q.  B.  28. 


§■   85]  THE   INSTRUMENT    OF   DEMISE.  102 

of  lands  held  adversely  to  it.^^^  Moreover,  if  the  lessee  comes  into 
actual  possession,  the  effect  of  the  lease  is  not  destroyed  by  the  fact 
that  another  was  in  possession  claiming  title  at  the  time  the  lease 
was  executed. ^"^  In  fact,  by  the  early  law  of  Vermont,  an  owner 
while  disseized  could  make  a  valid  transfer  of  his  interest  to  a  lessee 
by  an  instrument  of  demise. ^^^  Nor  is  it  necessary  that  the  owner 
of  land  should  be  in  actual  possession  of  it,  to  enable  him  to  give  a 
valid  lease.  The  undisputed  right  of  possession  is  sufficient.  As 
where  one  purchases  land  at  a  sheriff's  sale  and  the  defendant  in 
the  execution  has  not  actually  surrendered  the  possession,  yet  the 
purchaser  may  give  a  valid  lease  to  a  third  person,  before  acquiring 
possession  by  ejectment.  The  defendant  is  presumed  to  remain  in 
as  tenant  to  the  purchaser  and  in  subordination  to  his  title.  It  is 
not  for  strangers  to  say  that  he  holds  in  hostility  to  the  true  owner.^^'* 
So  the  possession  of  a  tenant  for  life  is  not  adverse  to  the  remainder- 
man and  hence  the  latter  may  make  a  valid  lease  notwithstanding 
such  possession.^^^  A  lease  for  years  which  is  granted  during  the 
continuance  of  an  outstanding  term  for  years  is  valid  also.  It  is 
admitted  that  the  first  lessee  was  in  possession  claiming  a  right  of 
possession  when  the  second  lessee  received  his  lease.  But  the  lessors 
had  not  been  ousted  from  their  possession.  The  first  lessee  had  done 
the  lessors  no  wrong  or  injury.  He  had  not  disseized  or  ousted  them 
of  the  possession;  they  could  not  have  maintained  an  action  of  eject- 
ment against  him.  He  was  their  tenant;  and  the  possession  of  the 
tenant  was  the  possession  of  the  landlord.  The  possession  of  the 
mortgagor  is  the  possession  of  the  mortgagee.  In  short  the  posses- 
sion of  any  one  who  properly  holds  under  the  legal  proprietor,  is  the 
possession  of  such  proprietor."''  A  holding  can  never  be  adverse  when 
it  can  be  considered  as  the  constructive  possession  of  the  real  owner. 
The  possession  of  the  first  lessee  could  not  have  made  void  a  convey- 
ance of  the  fee  by  the  lessors,  but  if  the  lessors  had  been  disseized, 
every  conveyance  they  might  have  made  would  have  been  void."^ 

In  California  the  common  law  right  to  transfer  property  which  is 
in  the  possession  of  another  is  supported  and  enlarged  by  a  provision 

i»^  People  V.   Mayor  &c.,  28   Barb.  "« Bryan     v.      Atwater,     5      Day 

(N.  Y.)   240.  (Conn.)    181;    Willison  v.  Watkins, 

"^Kinsman  v.  Greene,  16  Me.  60.  3  Pet.  (U.  S.)  43. 

^°='Rood  v.  Willard,   Brayt.    (Vt.)  "'Emerson   v.   Goodwin,   9   Conn. 

67.  422;   Rice  v.  Wiiitmore,  74  Cal.  619, 

1**  Russell  v.  Doty,  4  Cow.  (N.  Y.)  16  Pac.  501;   Wilbur  v.  Collin,  4  N. 

576.  Y.  App.  Div.  417. 

^"^  Grout  V.  Townsend,  2  Hill   (N. 
Y.)  554. 


103  PARTIES  TO  LEASES.  [§  8G 

in  the  code.  Under  the  code  property  of  every  kind  except  a  mere 
possibility  not  coupled  with  an  interest  may  be  transferred;  any 
person  claiming  title  to  real  property  in  the  adverse  possession  of  an- 
other may  transfer  it  with  the  same  effect  as  if  in  actual  possession. 
Surely  it  could  not  then  be  said  that  a  landowner  cannot  make  a  valid 
lease  of  his  land  until  all  former  leases  have  expired  and  the  tenants 
have  surrendered  back  to  him  the  possession.^^^ 

§  86.  One  tenant  in  common  cannot  as  such  make  a  lease  of  com- 
munity land  that  will  bind  his  fellows.  Unless  he  has  authority  from 
his  co-tenants  he  can  only  lease  his  own  individual  share.  ^'"^  The 
law  is  well  settled  that  a  license  to  use  land  or  a  lease  of  land  by 
some  of  several  tenants  in  common  owning  land  is  invalid  as  to  the 
others  who  do  not  join  therein.  Such  a  lease  is  not  void  as  to  those 
who  execute  it,  but  is  voidable  by  the  tenants  in  common  who  have 
not  joined  ;^^*'  it  being  of  the  essence  of  a  tenancy  in  common  that 
the  tenants  have  each  and  equally  the  right  to  occupy  the  property. 
A  lease  by  one  tenant  in  common  of  a  portion  of  the  estate,  in  sever- 
alty, in  which  the  others  do  not  join,  violates  the  rights  of  the  latter 
and  as  to  them  is  invalid. -°^  But  it  has  been  held  that  one  tenant  in 
common  may  make  a  valid  parol  lease  at  will  of  a  specific  portion  of 
the  common  property;  because  such  a  lease  from  a  tenant  in  com- 
mon does  not  prevent  the  estate  of  his  co-tenant  from  having  parti- 
tion, and  holding  in  severalty  his  full  share  of  the  common  prop- 
gj.^y_202  Qq  g^  lease  of  a  parcel  of  land  executed  by  two  of  three  tenants 
in  common  confers  sufficient  title  upon  the  lessee  to  enable  him  to 
maintain  an  action  for  possession  against  a  tenant  at  will  of  the  les- 
sors. They  were  entitled  to  possession  against  everybody  except  their 
tenant  in  common,  and  could  give  a  lease  of  the  premises  good  against 
every  one  who  does  not  claim  under  him.^"^  Where  one  of  two  ten- 
ants in  common  has  acquiesced  in  a  lease  for  a  year  executed  by  his 
co-tenant  alone,  and  has  brought  suit  against  the  lessees  as  holding 

"'Rice  V.  Whitmore,  74  Cal.  619,  bins,   64   Wis.   546,   25   N.    W.    713; 

16  Pac.  501,  Civ.  Code,  §§  1044-1047.  Tainter  v.  Cole,  120  Mass.  162. 

"'Mussey  v.  Holt,  24  N.  H.  248;  ="' De    Witt    v.    Harvey,    4    Gray 
Tainter  v.  Cole,  120  Mass.  162;  Tip-  (Mass.)    486;    Cunningham   v.   Pat- 
ping  v.  Robbins,  64  Wis.  546,  25  N.  tee,  99  Mass.  248. 
W.   713;    Martens  v.   O'Connor,   101  =°=  Rising   v.    Stannard,    17    Mass. 
Wis.  18,  76  N.  W.  774;  Valentine  v.  282. 

Healey,  158  N.  Y.  369,  52  N.  E.  1097,  -"^  Grundy    v.    Martin,    143    Mass. 

reversing  1  App.  Div.  502.  279,   9   N.   E.   647;    Cunningham   v. 

^"o  Martens  v.   O'Connor,  101  Wis.  Pattee,  99  Mass.  248. 
18,  76  N.  W.  774;   Tipping  v.  Rob- 


§    86]  THE   INSTRUMENT    OF   DEMISE.  104 

over  for  another  year  under  the  lease,  he  is  deemed  to  have  adopted 
the  lease  as  his  own  and  to  have  recognized  the  authority  of  his  co- 
tenant  to  make  it  and  to  treat  with  third  persons  in  reference  to  the 
premises.^"*  However,  if  two  persons  own  land,  and  one  of  them 
rents  it  by  a  written  lease,  he  alone  has  the  legal  interest  in  the  con- 
tract, and  it  is  not  admissible  in  evidence  in  a  suit  brought  by  the 
administrators  of  both  owners — the  contract,  being  a  chose  in  action^ 
passed  at  the  death  of  the  lessor  to  his  administrator  alone.^"^ 

Where  one  of  four  tenants  in  common  became  dissatisfied  with  the 
amount  of  rent  received  and  notified  the  lessee  that  if  he  continued 
to  hold  after  a  certain  date  the  rent  would  be  at  an  increased  rate,  it 
was  held  that  the  dissatisfied  co-owner  could  only  recover  the  reason- 
able value  of  the  use  of  the  premises.^"''  The  lessee  had  not  agreed 
to  pay  the  increased  rental  and  did  not  so  agree  by  continuing  to 
occupy.  Whatever  rights  the  discontented  owner  in  common  had 
would  merely  have  entitled  him  to  recover  back  the  possession  of  the 
premises. 

The  circumstance  that  tenants  in  common  in  a  certain  piece  of 
land  are  partners  as  well  does  not  ordinarily  increase  the  authority 
of  one  of  the  co-owners  to  execute  a  lease  conveying  the  entire  prop- 
erty. There  may  be  cases  where  a  partner  would  have  power,  as  such, 
to  make  a  lease  of  land  binding  on  the  other  partners ;  but  it  must  be 
where  the  lease  is  made  in  the  prosecution  of  the  partnership  business 
and  where  the  making  of  the  lease  was  in  the  exercise  of  an  authority 
necessarily  implied  from  the  nature  and  object  of  the  partnership.^*^^ 

In  the  absence  of  special  covenants,  the  real  estate  owned  by  part- 
ners must  be  considered  theirs  in  common  without  any  reference 
to  the  partnership.   The  parties  are  tenants  in  common,  not  partners 

'^Valentine  v.  Healey,  158  N.  Y.  an   owner  of  property  in  common 

369,  52  N.  E.  1097,  reversing  1  App.  with  other  owners  he  is  not  entitled 

Div.  502.  to  dictate  the  management  of  their 

2°=  Fesmire  v.  Brock,  25  Ark.  20.  interests  as  well  as  his  own  without 

=^Nott  v.  Owen,  86  Me.  98,  29  Atl.  their      consent.      .      .      .     Were     it 

943.     Some  language  in  the  opinion  otherwise    any    tenant    in    common 

suggests  a  doctrine  in  conflict  with  would  have  the  power  by  his  per- 

the  authorities,  such  as  the  follow-  verseness    to    actually    destroy    the 

ing:      "The    plaintiff's    proposition  valuable  use  of  the  common  proper- 

that  the  tenant  can  not  rightfully  ty.     The  law  frowns  upon  the  idea 

occupy  the  store  at  all  unless  there  of   any   such   despotic   power  being 

be  an  agreement  with  him  for  the  possessed  by  an  owner  in  common 

occupancy  of  his  one-quarter  is  far  over  the  common  property." 
from     tenable.     Were     he     a     sole         =»' Mussey  v.   Holt,   24  N.  H.   248^ 

owner,   he   could    manage   his   own  254. 
property  in  his  own  way.    But  as 


105  PARTIES  TO  LEASES.  [§  ST" 

in  the  land.  The  principles  and  rules  of  law  applicable  to  partner- 
ships, and  which  govern  and  regulate  the  disposition  of  the  partner- 
ship property,  do  not  apply  to  real  estate. ^"^  When  a  lease  is  exe- 
cuted by  a  firm  composed  of  several  members,  the  covenants  thereto 
are  several  as  well  as  joint,  and  each  individual  member  of  the  firm 
is  liable  thereon.-*^^ 

§  87.  Leases  by  and  to  married  women. — At  common  law  mar- 
riage makes  the  husband  and  wife  one  person;  suspending  the  legal 
capacity  or  existence  of  the  wife  during  the  coverture,  depriving  her 
of  a  free  will,  and  subjecting  her  to  obedience  to  her  husband.^ ^"  The 
wife  cannot  enter  into  any  contract  with  any  person,  her  capacity  to 
,  do  so  being  suspended  during  coverture  and  therefore  her  promise  or 
contract  of  any  kind  is  absolutely  void.^^^  So  at  common  law  a  lease 
by  a  married  woman  was  in  no  way  binding  upon  lier.^^^  As  a  gen- 
eral rule  a  deed  by  a  married  woman  was  void  and  incapable  of  be- 
ing confirmed,  but  an  exception  was  made  in  favor  of  a  lease,  which 
could  be  confirmed  by  the  wife  after  the  death  of  her  husband.^^^  So 
where  a  lease  by  deed  was  executed  by  the  husband  and  wife  jointly, 
the  wife  could,  upon  the  death  of  the  husband,  confirm  the  lease,  al- 
though it  was  not  in  the  first  instance  binding  upon  her  after  his 
death.2i* 

Although  the  wife  cannot  in  any  manner  make  a  valid  contract, 
she  may  take  property  as  grantee,  but  her  husband  can  avoid  the  gift 
or  purchase  by  dissent,  and  she,  on  becoming  discovert,  may  repudiate 
and  annul  it.^^^  So  at  common  law  a  married  woman  could  not  take 
a  lease  and  thereby  render  the  covenants  on  her  parts  binding  on 

2»8  Coles  V.  Coles,  15  Johns.  (N.  Y.)  ='=  Goodright  v.  Straphan,  1  Cowp. 

159;  Thornton  v.  Dixon,  3  Bro.  C.  C.  201. 

199;  Balmain  V.  Shore,  9  Ves.  500.  ^^  Sanborn   v.    French,    22    N.    H. 

^o'Dunn  V.  Jaffray,  36  Kan.  408,  13  246;  Ela  v.  Card,  2  N.  H.  175;  Nash 

Pac.  781.  V.  Berkmeir,  83  Ind.  536. 

=^»1   Bl.    Com.   442,  Litt.,   §§  112b,  =»  Toler  v.   Slater,   L.   R.   3    Q.    B. 

168,  1  Bishop  M.  &  D.,  §§  754-760.  42;     Atherstone    v.     Huddleston.     2 

'^^Co.  Litt.,  112a,  1  Bl.  Com.  442;  Taunt.    181;    Greenwood    v.    Tyber, 

Brittin   v.   Wilder,    6   Hill    (N.   Y.)  Cro.  Jac.  563. 

242.;    Edwards  v.   Davis,   16   Johns.  =">  Scanlan    v.    Wright,    13    Pick. 

(N.  Y.)  281;  Young  v.  Paul,  10  N.  J.  (Mass.)  523;  Gordon  v.  Haywood,  2 

Eq.  401;   Wallace  v.  Rippon,  2  Bay  N.  H.  402;  Junction  R.  Co.  v.  Harris, 

(S.  Car.)   112;  Dorrance  v.  Scott,  3  9  Ind.  184;   Brackett  v.  Wait,  6  Vt. 

Whart.     (Pa.)     309;     Johnston     v.  411;   Co.  Litt.  3a,  356b;   2  Bl.  Com. 

Jones,  12  B.  Mon.   (Ky.)   326;   Har-  292;  2  Kent  Com.  150. 
ris  V.  Taylor,  3  Sneed  (Tenn.)  536; 
Stephenson  v.  Osborne,  41  Miss.  119. 


§    87]  THE   INSTRUMENT    OF    DEMISE.  106 

her/^®  but  where  possession  was  taken  under  a  lease  to  her,  her  hus- 
band was  liable  in  an  action  for  use  and  occupation. ^^'^  If  a  married 
woman  took  a  lease  and  in  fact  voluntarily  performed  all  the  stipula- 
tions on  her  part  to  be  performed,  the  lessor  would  not  be  allowed  to 
treat  the  lease  as  void,  for  that  would  be  against  equity  and  good 
conscience.^^^  However,  in  one  case  a  married  woman  was  not  al- 
lowed to  recover  rent  on  an  invalid  lease  executed  by  her,  although 
some  of  the  lessees  had  occupied  the  premises  by  virtue  of  the  lease.^^* 

Where  by  statute  all  real  and  personal  jjroperty  of  a  married  woman 
is  declared  to  be  her  sole  and  separate  property,  subject  to  her  con- 
trol, the  power  is  necessarily  conferred  to  sell  and  convey  without  the 
husband's  consent,  and  such  a  statute  so  modifies  the  common  law  as 
to  enable  her  to  make  valid  contracts  in  regard  to  her  real  estate  and 
personal  property,  and  to  execute  a  lease  which  shall  bind  all  the 
parties  to  it.^^^  But  to  be  bound  by  the  contract  the  married  woman 
must  follow  the  mode  of  contracting  pointed  out  by  the  statute.^^^ 
The  statutes  enabling  a  married  woman  to  receive,  hold,  manage  and 
dispose  of  real  and  personal  property  in  the  same  manner  as  if  she 
were  sole,  cannot  be  construed  to  apply  to  the  estate  by  entireties  of 
husband  and  wife,  where  other  statutes  prevent  this  conveyance  from 
being  construed  as  creating  a  tenancy  in  common.^'-  The  decisions 
in  many  states  upon  the  effect  of  such  statutes  turn  more  or  less  upon 
the  particular  terms  of  the  statutes.  Many  cases  hold  that  these 
statutes  do  not  affect  estates  by  entireties. ^^^  In  a  few  other  juris- 
dictions the  contrary  conclusion  has  been  reached.^^* 

The  Mississippi  code  in  its  provision  regarding  the  renting  of  lands 
and  personalty  between  husband  and  wife  applies  only  to  persons  deal- 
ing without  notice,  while  a  similar  section  regarding  transfers  and 

'^'Westervelt  v.  Ackley,  62  N.  Y.         ==^  Bertles  v.  Nunan,  92  N.  Y.  152; 

505.  Marburg  v.  Cole,  49  Md.  402;  Hulett 

^^  Vincent  v.  Buhler,  1  Daly   (N.  v.  Inlow,  57  Ind.  412;    Hemingway 

Y.)  165.  v.   Scales,   42   Miss.   1;    McCurdy   v. 

=^»  Baxter  v.  Smith,  6  Binn.   (Pa.)  Canning,    64    Pa.    St.    39;    Diver    v. 

427;  Ray  V.  Western  Pa.  &c.  Co.,  138  Diver,    56    Pa.    St.    106;     Fisher    v. 

Pa.  St.  576,  20  Atl.  1065,  21  Am.  St.  Provin,   25   Mich.   347;    Robinson   v. 

922.  Eagle,  29  Ark.  202;  McDuff  v.  Beau- 

"'Schenck  v.  Stumpf,  6  Mo.  App.  champ,    50    Miss.    531;     Rogers    v. 

381.  Grider,  1  Dana   (Ky.)    242;    Den  v. 

2=^  Parent  v.  Callerand,  64  111.  97.  Hardenbergh,  10  N.  J.  Law  42. 

"'Keller  v.  Klopfer,  3  Colo.  132;         ''"Cooper   v.    Cooper,    76    111.    57; 

Carlton  v.  "Williams,  77  Cal.  89,  11  Hoffman   v.   Stigers,    28    Iowa   302; 

Am.  St.  243.  Clark  v.  Clark,  56  N.  H.  105. 

"'  Pray  v.  Stebbins,  141  Mass.  219, 
4  N.  E.  824. 


107  PARTIES  TO  LEASES.  [§  87 

conveyances  contains  no  clause  in  regard  to  notice.  The  result  is 
that  in  contracts  of  the  former  class  persons  with  notice  are  bound 
by  the  contract  between  the  husband  and  the  wife.  The  doctrine  of 
estoppel  has  no  application,  but  notice  alone  is  sufficient  to  bind  all 
persons  dealing  with  one  spouse  in  adverse  interest  to  that  of  the 
other.^^^ 

In  Maine  it  is  provided  that  real  estate  directly  or  indirectly  con- 
veyed to  a  married  woman  by  her  husband,  or  paid  for  by  him  or 
given  or  devised  to  her  by  his  relatives,  cannot  be  conveyed  by  her 
without  the  joinder  of  her  husband."''  The  question  presented  to  the 
court  in  one  case  under  this  statute  was  whether  a  lease  was  a  con- 
veyance within  the  meaning  of  the  act.  The  court  thought  it  was 
not.  The  word  convey  or  conveyance  must  refer  to  an  alienation 
of  the  estate,— a  transference  of  the  title.  It  is  "real  estate"  that 
cannot  be  conveyed.  A  lease  is  personal  property.  It  bargains  away 
a  temporary  possession, — does  not  dispose  of  any  fee  or  title.  There 
is  no  inhibition  against  a  sale  of  personal  property  by  the  wife  alone, 
although  given  to  her  by  her  husband.  The  statutory  provision  under 
review  should  not  be  very  generously  interpreted  for  the  husband 
when  the  rights  of  third  persons  are  likely  to  be  inperiled  thereby."^ 

By  an  Indiana  statute  there  is  an  absolute  denial  of  power  to  a 
married  woman  "to  encumber  or  convey  her  lands''  except  by  deed 
in  which  her  husband  shall  join.^^^  The  ordinary  lease  of  agricul- 
tural lands,  for  the  purpose  of  cultivation,  although  carrying  an  in- 
terest in  the  lands  has  been  held  not  to  fall  within  the  inhibition  of 
this  statute.229  gy  statute  the  lands  of  a  married  woman,  and  the 
rents  and  profits  therefrom,  are  her  separate  property.  To  realize 
rents,  lands  must  be  let ;  so  it  seems  that  a  lease  for  a  term  not  ex- 
ceeding three  years  is  not  an  encumbrance  or  conveyance  within  the 
meaning  of  the  act.  Oil  and  gas  leases  differ  from  agricultural  leases 
in  that  they  may  carry  a  substantial  and  enduring  interest  in  the 
freehold.  But  in  their  primary  effect,  they  part  with  no  immediate 
title  or  estate  and  carry  but  a  right  of  exploration.  For  the  purpose 
of  prospecting,  such  leases  involve  a  mere  use,  and  part  with  no 
greater  interest  in  the  freehold  than  the  ordinary  agricultural  lease. 
For  such  purpose  there  is  no  doubt  as  to  the  right  of  a  married  woman 

"'^  Underwood    v.     Ainsworth,     72  ^-^  Burns'  R.  S.  1894,  §  6961. 

Miss.  328,  18  So.  379.  =^»  Pearcy  v.  Henley,  82  Ind.  129; 

""R.  S.,  c.  61,  §  1.  Nash    V.    Berkmeir,    83    Ind.    536; 

-'  Perkins  v.  Morse,  78  Me.  17,  2  Indianapolis,  City  of,  v.  Kingsbury, 

Atl.  130.  101  Ind.  200,  51  Am.  R.  749. 


§    88]  THE    IXSTRUilEXT    OF   DEMISE.  108 

to  make  a  lease  without  her  husband  joining.""  But  an  absolute 
conveyance  of  all  the  oil  and  gas  under  certain  land  has  been  held  to 
be  within  the  prohibition  of  the  statute.^^^ 

The  interest  of  a  surviving  spouse  in  real  estate  before  dower  or 
homestead  has  been  assigned  is  not  such  as  to  enable  him  to  make  a 
valid  lease  against  the  right  of  the  administrator  to  sell  the  prop- 
erty to  pay  debts  of  the  estate.-^-  It  is  a  rule  of  property  that  a  sur- 
viving husband  or  wife  cannot  sell  and  convey  the  right  of  dower  and 
homestead  to  a  person  other  than  the  owner  of  the  fee,  or  lease  the 
same  before  dower  and  homestead  have  been  set  off  and  assigned.-^^ 

§  88.  Rig^ht  of  husband  to  lease  wife's  real  estate. — If  there  is  no 
ante-nuptial  contract  or  enabling  statute,  the  marriage  vests  in  the 
husband  an  estate  in  all  the  wife's  real  property  in  her  possession  at 
the  time  of  the  marriage  or  which  comes  to  her  during  the  marriage, 
to  last  during  the  joint  lives  of  himself  and  wife,  he  being  seized 
thereof  with  his  wife  in  her  right,  and  the  death  of  the  wife  or  death 
of  the  husband  will  end  it.^^*  This  control  which  a  husband  has  over 
the  real  estate  of  his  wife,  gives  him  the  right  to  grant  leases  of  it. 
He  has,  during  coverture,  the  usufruct  of  all  the  real  estate  which  his 
wife  has  in  fee  simple,  fee  tail,  or  for  life.^^^  "By  the  great  weight 
of  authority,  the  husband  has  the  right  to  make  a  lease  of  an  estate 
conveyed  in  fee  to  him  and  his  wife,  which  will  be  good  against  the 
wife  during  coverture,  and  will  fail  only  in  the  event  of  his  wife  sur- 
viving him."-^^    Such  a  lease  by  the  husband  alone  could  not  be  con- 

^"Heal    v.    Niagara    Oil    Co.,    150  463;   Guion  v.  Anderson,  8  Humph. 

Ind.  483,  50  N.  E.  482.  (Tenn.)    298;   Shallenberger  v.  Ash- 

='' Columbian  Oil  Co.  v.  Blake,  13  worth,  1  Casey  (Pa.)  152;  Evans  v. 

Ind.  App.  680,  42  N.  E.  234.  Kingsberry,  2  Rand.  (Va.)  120. 

"■^-  Union  Brewing  Co.  v.  Meier,  163  -^^  Pray  v.  Stebbins,  141  Mass.  219, 

111.  424,  45  N.  E.  264.  4  N.  E.  824. 

^''Best  v.  Jenks,   123   111.   447,   15  =="«  Washburn   v.   Burns,  5  Vroom. 

N.  E.  173.  (N.    J.)    18;    Barber   v.    Harris,   15 

^*  Kelly  on  Contracts  of  Married  Wend.   (N.  Y.)  615;  Jackson  v.  Mc- 

Women,  p.  38;  Robertson  v.  Norris,  Connell,  19  Wend.  (N.  Y.)  175;  Top- 

11  Q.  B.  916,  63  E.  C.  L.  916;   Har-  ping  v.  Sadler,  5  Jones  L.  (N.  Car.) 

court  V.  Wyman,  3  Exch.  817;  Cheek  357;     Fairchild    v.     Chastelleux,     1 

v.  Waldrum,  25  Ala.  152;  Bishop  v.  Barr  (Pa.)   176;   Pollok  v.  Kelly,  6 

Blair,   36   Ala.    80;    Montgomery   v.  Ir.  C.  L.  367,  375;  Bertles  v.  Nunan, 

Tate,  12  Ind.  615;  Gregory  v.  Ford,  92  N.  Y.  152;   Wyckoff  v.  Gardner, 

5    B.    Mon.     (Ky.)     471;     Beale    v.  Spencer  (N.  J.)   556;  Ames  v.  Nor- 

Knowles,    45    Me.    479;    Jackson    v.  man,   4   Sneed    (Tenn.)    683;    Ward 

Cairns,    20    Johns.     (N.    Y.)     301;  v.  Ward,  L.  R.  14  Ch.  D.  506;  God- 

Clapp  v.  Stoughton,  10  Pick.  (Mass.)  frey  v.  Bryan,  L.  R.  14  Ch.  D.  516. 


109  PARTIES  TO  LEASES.  [§  89 

firmed,  for  the  balance  of  the  term,  by  the  wife  on  the  death  of  her 
husband.  Though  it  be  admitted  that  the  lease  of  a  husband  is  only 
binding  on  his  wife  during  his  lifetime,  it  might  be  contended  that 
by  her  acceptance  of  rent  and  apparent  acquiescence  in  the  lease 
after  she  became  discovert  she  would  affirm  it  and  become  bound  by 
its  provisions.  This  would  be  so,  no  doubt,  if  she  had  originally 
joined  her  husband  in  the  lease,  for  then  she  might,  after  her  hus- 
band's death,  affirm  the  act  or  avoid  it  according  to  her  election.  But 
the  principle  has  been  laid  down  in  accordance  with  the  weight  of 
authority  that  a  mere  verbal  lease  by  husband  and  wife  of  her  lands, 
or  a  written  lease  to  which  she  is  not  a  party,  is  void  as  to  the  wife.^^^ 

So  in  regard  to  the  leasehold  estates  of  a  married  woman,  the  rule 
is  that  the  husband  acquires  all  the  chattels  real,  legal  or  equitable, 
of  which  the  wife  is  possessed  at  the  marriage,  provided  he  does  some 
act  of  appropriating  them  or  survive  his  wife.  The  husband  could 
under-let  and  the  under-lease  would  be  good  for  the  entire  term,  even 
though  the  husband  died  during  the  term  and  his  wife  survived  him.^^^ 
A  sub-lease  by  a  husband  to  commence  at  his  death  would  be  valid, 
although  his  wife  survived  him,-^^  and  a  covenant  by  a  husband  to 
sublet  was  held  binding  upon  the  estate  after  the  death  of  the  hus- 
band.^^o 

By  statute  in  Washington  community  lands,  that  is,  those  held  by 
husband  and  wife  jointly,  can  only  be  leased  by  the  assent  and  signature 
of  both  parties.  However,  where  such  lands  have  been  leased  by  an 
instrument  signed  by  one  party  only,  the  lessee  cannot  repudiate  the 
lease  without  first  demanding  a  valid  lease  from  the  lessor  and  giv- 
ing him  an  opportunity  to  execute  a  valid  lease.^^^  Wliile  a  husband 
could  not  execute  a  valid  lease  of  community  lands,  still  his  lease 
would  not  be  absolutely  void.  If  the  lessees  had  been  ousted  there  is 
no  good  reason  why  they  could  not  have  maintained  an  action  for 
damages  upon  the  breach  of  the  covenant  for  quiet  enjoyment.  If 
the  lessees  had  no  notice  that  the  property  was  community  property 
when  the  lease  was  executed,  they  could  not  be  charged  as  standing 
in  the  position  of  wilful  violators  of  the  law.^*^ 

§  89.  Guardians. — Although  it  has  been  said  to  be  a  well-settled 
principle  that  a  guardian  cannot  by  his  contract  bind  the  person  or 

""Winstell  v.  Hehl,  6  Bush  (Ky.)  "'Isaacs  v.  Holland,  4  Wash.  54, 

58.  29    Pac.    976;     Tryon    v.    Davis,    8 

««Loftus'  Case,  Cro.  Eliz.  279.  Wash.  106,  35  Pac.  598. 

""Grute  v.  Loeroft,  Cro.  Eliz.  287.  =*=  Isaacs  v.  Holland,  4  Wash,  54, 

^«  Steed  v.  Cragh,  9  Mod.  43.  29  Pac.  976. 


§    89]  THE    IXSTRUMENT    OF    DEMISE.  110 

estate  of  his  ward,-*^  there  is  no  doubt  but  that  a  guardian  may  lease 
the  lands  of  the  ward  during  infancy,  if  the  guardianship  so  long 
continue.^**  In  case  the  demise  were  from  year  to  year,  if  another 
guardian  were  appointed,  the  term  would  cease.  Where  a  lease  was 
made  by  a  guardian,  the  reservation  of  rent  to  the  infant  was  proper, 
and  could  not  be  likened  to  the  reservation  of  rent  to  a  stranger; 
for  the  inheritance  being  in  the  ward,  there  is  privity  between  him 
and  the  lessee.  It  is  true,  also,  that  the  guardian  may,  by  a  lease  in 
writing,  reserve  the  rent  to  himself  to  cover  advances  which  he  may 
make  for  the  use  of  the  ward,  and  in  that  case  the  action  for  rent  must 
be  brought  in  his  own  name  unless  he  assign  the  lease  to  the  ward.-*^ 
Except  when  licensed  by  the  judge  of  probate  to  sell  the  real  estate 
or  to  mortgage  it,  the  power  of  the  guardian  is  by  most  modern  stat- 
utes limited  to  leasing  and  to  the  reception  of  the  rents  and  profits.-*^ 
The  power  to  lease  any  of  the  ward's  property  of  such  character  as  to 
be  the  subject  of  a  lease  does  not  carry  with  it  the  right  to  dispose  of 
any  part  of  the  realty.  It  follows  that  as  oil  is  a  mineral,  and  being 
a  mineral,  is  part  of  the  realty,  a  guardian  cannot  grant  an  oil  and 
gas  lease  of  land  of  his  ward,  as  that  would  in  effect  be  the  grant  of 
a  part  of  the  corpus  of  the  estate  of  the  ward.  Not  infrequently  the 
oil  forms  by  far  the  most  valuable  part  of  an  estate,  and  to  permit  a 
guardian  to  dispose  of  it  at  will  and  without  security  would  often 
lead  to  consequences  disastrous  to  his  ward.^*^  The  foregoing  state- 
ments as  to  the  powers  of  guardians  applies  only  to  guardians  of  an 
infant's  estate  and  not  to  a  natural  guardian  or  a  guardian  for 
nurture,  because  a  guardian  for  nurture  has  not  even  the  right  of  pos- 
session of  his  ward's  real  estate  and  hence  would  have  no  right  to 
bring  ejectment  for  it.^*^    It  was  laid  down  in  an  early  authority  that 

^*^  Jones     v.      Brewer,      1      Pick.  Paige  (N.  Y.)  390;  People  v.  Inger- 

(Mass.)  314.  soil,  20  Hun    (N.  Y.)    316,  58  How. 

="  Ross  V.  Gill,  1  Wash.  (Va.)  87;  Pr.     351;     Ronald     v.     Barkley,     1 

Windon  v.  Stewart,  43  W.  Va.  711,  Brock.   (U.  S.)   356;   Rex  v.  Sutton, 

28  S.  B.  776;  Stoughton,  Appeal  of,  3  A.  &  E.  597;  Wade  v.  Baker,  ILd. 

88  Pa.  St.  198;    Hughes'  Appeal,  53  Raym.  130. 

Pa.    St.    500;    Weldon    v.    Lytle,    53  =^=  Ross  v.  Gill,  1  Wash.   (Va.)  87; 

Mich.  1,   18   N.   W.   533;    Kinney  v.  ="  Kinney  v.  Harrett,  46  Mich.  87, 

Harrett,  46  Mich.  87,  8  N.  W.  708;  8  N.  W.  708. 

Huff  V.  Walker,  1  Ind.  193;    Snook  ="  Stoughton,  Appeal  of,  88  Pa.  St. 

V.  Sutton,  10  N.  J.  Law  133;  Hutch-  198;  Wilson  v.  Youst,  43  W.  Va.  826, 

ins  V.  Dresser,  26  Me.  76;   Richard-  28  S.  E.  781. 

son  V.  Richardson,  49  Mo.  29;   Gra-  =*' Kinney  v.  Harrett,  46  Mich.  87, 

ham  v.   Chatoque  Bank,   5   B.  Mon.  8  N.  W.  708;   Anderson  v.  Darby,  1 

(Ky.)    45;     Putnam    v.    Ritchie,    6  Nott  &  McC.   (S.  Car.)  369;  May  v. 


Ill  PARTIES  TO  LEASES.  [§  93 

a  guardian  for  nurture  has  only  the  care  of  the  person  and  education 
of  the  infant  and  has  nothing  to  do  with  his  lands,  and  that  he  cannot 
make  a  lease  of  them  for  years,  either  in  his  own  name  or  in  that  of 
the  infant.^''^ 

In  Illinois  the  only  power  a  guardian  has  over  the  real  estate  of  his 
ward  is  to  lease  it  upon  such  terms  and  for  such  length  of  time  as 
the  county  court  shall  approve.  As  respects  the  minors,  a  lease  pur- 
porting to  be  made  by  their  guardian,  but  withoiit  the  approval  of  the 
court,  is  voidable.  Such  a  lease  is  not  void,  however,  and  all  that  can 
be  reasonably  claimed  under  the  statute  is  that  a  lease  made  by  a 
guardian  may  be  rejected  and  set  aside  by  the  court,  but  it  may  be 
regarded  as  binding  until  the  court  should  examine  it  and  refuse  ap- 
proval.^^" 

The  Iowa  statute  regarding  guardians  provides  that  "they  must 
also,  in  other  respects,  manage  their  (wards')  interests  under  the  di- 
rection of  the  court.  They  may  thus  lease  their  land  or  loan  their 
money  during  their  minority,  and  may  do  all  other  acts  which  the 
court  may  deem  for  the  benefit  of  the  wards."  The  effect  of  this  is 
that  guardians  must  manage  the  interests  of  their  wards  under  the 
direction  of  the  probate  court.  The  statute  implies  an  inhibition 
upon  the  doing  of  these  acts  without  the  direction  of  the  court."^ 
So  a  lease  made  by  a  guardian  is  invalid,  or  voidable  at  least,  unless 
ordered  or  approved  by  the  proper  probate  court.  If  a  lease  be  made 
without  such  order  or  approval,  it  could  be  avoided  upon  proof  of 
unconscionable  inadequacy  of  the  rent  reserved,  if  indeed  the  instru- 
ment was  not  absolutely  void.^^^ 

§  90.  Except  in  regard  to  the  duration  of  the  terms,  there  seems 
to  be  no  restriction  as  to  the  mode  in  which  the  guardian  must  pro- 
ceed in  effecting  a  lease  of  his  ward's  land.  A  lease  for  a  crop  rent 
would  be  valid.  The  guardian  would  have  the  legal  right  to  make 
such  an  arrangement,  and  if  the  land  were  sold  under  a  probate  li- 
cense to  a  person  with  notice  of  the  lotting,  the  cropper's  rights  would 
not  be  affected  by  the  sale.^^*     It  is  the  duty  of  the  trustees  or 

Calder,  2  Mass.  55;  Ross  v.  Cobb,  9  =»  Field  v.  Herrick,  5  111.  App.  54, 

Yerg.  (Tenn.)  463;  Magruder  v.  Pe-  affirmed  in  101  111.  110. 

ter,  4  Gill  &  J.  (Md.)  323.  "^  Bates  v.  Dunham,  58  Iowa  308, 

=^'  3   Bacon  Abr.   Guardian    G.   15,  12  N.  W.  309. 

414;  Comyn  Landlord  &  Tenant  45;  ""Alexander     v.     Bufflngton,     66 

May  v.  Calder,  2  Mass.  55;  Ross  v.  Iowa  360,  23  N.  W.  754. 

Cobb,  9  Yerg.   (Tenn.)   463;   Ander-  =•■' Weldon  v.  Lytle,  53  Mich.  1,  18 

son  v.   Darby,   1   Nott  &   McC.    (S.  N.  W.  533. 
Car.)  369. 


§    90]  THE   INSTRUMENT    0?    DEMISE.  112 

guardians  of  infants  to  lease  the  lands  of  their  wards,  as  the  wards 
are  incapable  of  acting  for  themselves,  and  they  must  collect  the  rents 
and  account  for  them.^^*  In  common  with  all  other  kinds  of  fidu- 
ciaries no  more  is  required  of  guardians  than  that  they  act  in  good 
faith  and  with  the  same  prudence  and  discretion  that  a  prudent 
man  is  accustomed  to  exercise  in  the  management  of  his  own  af- 
fairs.^^"^  Common  skill,  common  caution,  common  prudence  are  all 
that  can  be  required.  That  a  guardian  did  not  rent  at  public  renting 
is  not  a  sign  of  fraud  where  the  law  does  not  require  a  public  rent- 

The  right  of  a  guardian  to  lease  his  ward's  lands  is  limited  strictly 
to  the  infancy  of  the  ward,  and  if  a  lease  by  the  guardian  exceed  the 
time  when  the  ward  will  be  twenty-one,  it  is  void.  So  where  a  lease 
provided  that  the  term  should  continue  till  the  ensuing  year  after 
the  infant  came  of  age  unless  he  thought  proper,  in  pursuance  of  the 
power  reserved  to  him,  to  put  an  end  to  it,  the  entire  lease  was  void ; 
because  the  power  did  not  affect  the  main  stipulation,  as  it  was  col- 
lateral, and  might  never  be  exercised.^^^  The  reason  of  this  rule  is, 
that  the  age  of  the  infant  and,  by  consequence,  the  time  when  the 
wardship  and  incapacity  of  the  infant  will  terminate,  are  well  known. 
There  is  no  such  certainty  in  the  case  of  a  wardship  which  can  only 
be  determined  by  the  death  of  the  ward.  The  guardian  of  a  person 
non  compos  mentis  has  no  power  to  create  a  term  which  will  remain 
valid  beyond  the  lifetime  of  the  ward.  In  case  the  ward  dies  during 
the  term  of  the  lease,  the  lease  though  good  up  to  the  time  of  his 
death,  becomes  by  that  event  invalid  as  against  his  heirs  and  probably 
against  his  administrators.  But  the  lease  is  not  so  absolutely  void 
for  the  remainder  of  the  terms  as  to  be  incapable  of  confirmation  by 
the  heirs  and  other  parties  claiming  under  the  ward.  If  such  parties 
chose  to  confirm  it,  it  becomes  binding  upon  both  them  and  the 
lessees.  However,  the  lessees  would  not  be  bound  to  accept  a  con- 
firmation by  a  part  of  the  heirs  or  other  persons  who  had  a  right  to 
disaffirm  it,  without  the  whole.^^^ 

Furthermore,  the  right  of  the  guardian  to  lease  his  ward's  lands 
is  limited  to  such  time  as  he  shall  continue  to  be  guardian.     On  the 

*"  Field    V.    Schieffelin,    7    Johns.  ="Windon  v.  Stewart,  43  W.  Va. 

Ch.     (N.    Y.)    150;    Byrne    v.    Van  711,  28  S.  E.  776. 

Hoesen,  5  Johns.  (N.  Y.)  66;  Genet  "^Ross  v.  Gill,  4  Call   (Va.)    250; 

V.  Tallmadge,  1  Johns.  Ch.   (N.  Y.)  2  Kent's  Com.  255. 

561.  ^'''Campau  v.  Shaw,  15  Mich.  226. 

""Myers  v.  Zetelle,  21  Grat.  (Va.) 
758. 


113  PARTIES  TO  LEASES.  [§  91 

appointment  of  another  guardian,  the  former  guardian's  power  to 
lease,  and  all  leases  made  by  him  of  the  ward's  lands,  cease.^^® 

§  91.  Trustees  have  a  general  power  of  leasing,  if  the  lease  does 
not  exceed  the  quantity  of  estate  that  is  in  them  and  is  a  reasonable 
one.^®"  In  an  early  case  in  New  York  it  was  held  that  trustees  under 
a  will  "had  authority  to  grant  leases  for  such  length  of  time  and 
upon  such  terms  as  they  might  think  proper,  and  at  law  all  suck 
leases  would  be  valid.  But,  although  good  at  law  whatever  may  be 
their  terms,  they  are,  nevertheless,  subject  to  the  supervisory  juris- 
diction exercised  by  courts  of  equity  over  every  species  of  trust.  As, 
however,  the  will  in  this  case  contained  no  limitation,  either  express 
or  implied,  upon  the  powers  which  the  trustees  possessed  as  incident 
to  their  legal  estate,  the  only  ground  upon  which  a  court  of  equity 
can  interfere  with  leases  executed  by  them  is,  that  such  leases  are  to 
be  regarded,  in  view  of  the  duration  of  the  trust  estate  and  the  ob- 
ject of  the  trust,  as  an  abuse  or  grossly  improvident  exercise  by  the 
trustees  of  the  powers  with  which  they  are  clothed.  In  all  such  cases 
if  the  trustee  act  honestly,  and  with  a  reasonable  degree  of  prudence 
and  foresight,  their  acts  are  to  be  upheld."^"  Not  only  is  a  trustee 
authorized  to  grant  leases  of  the  trust  property,  but  that  mode  of  deal- 
ing with  property  which  is  expected  to  yield  a  monetary  return  is 
the  rule  and  not  the  exception.  So  that  in  a  case  where  a  plantation 
was  placed  in  the  hands  of  a  trustee,  a  special  authorization  was 
necessary  to  entitle  him  to  exercise  personal  supervision  over  the 
management  rather  than  renting  it  out.^'''^  It  is  not  unusual  for  an 
owner  of  farm  lands  to  grant  a  lease  of  them  for  a  term  of  years,  and 
so  a  trustee  would  have  the  implied  power  to  do  so  if  there  was  noth- 
ing in  the  instrument  creating  the  trust  to  restrict  him.^^s 

It  is  a  general  rule  that  trustees  of  a  charitable  use  should  only 
lease  for  years  unless  they  have  obtained  an  order  of  the  court  to 

258  Emerson    v.    Spicer,    55    Barb.  v.  Dodswell,  13  Ves.  Jr.  266;  City  of 

(N.  Y.)    428;    Sylvester  v.  Ralston,  Richmond  v.  Davis,  103  Ind.  449,  3 

31    Barb.    (N.    Y.)    286;    Holmes   v.  N.  E.  130. 

Seely,  17  Wend.    (N.  Y.   )   75;   Put-  ="  Greason   v.   Keteltas,   17    N.   Y. 

nam  v.  Ritchie,  6  Paige  (N.  Y.)  390,  491,   494,   per   Selden,  J.     To   same 

399;    Roe  v.  Hodgson,   2  Wils.   129,  effect  see  Cone  v.  Corse,  144  N.  Y. 

135  569,  39  N.  E.  630,  and  Middleton  v. 

^o"  Hutcheson  v.  Hodnett,  115  Ga.  Dodswell,  13  Ves.  266. 

990,  42  S.  E.  422;  Naylor  v.  Arnitt,  ="=  Dennis  v.  Dennis,  15  Md.  73. 

1  R.  &  M.  501 ;  Bowes  v.  East  Lon-  "-'"  Hutcheson  v.  Hodnett,  115  Ga. 

don    &c.    Co.,    Jac.    324;    Drohan    v.  990,  42  S.  E.  422. 
Drohan,  1  Ball  &  B.  185;  Middleton 
Jones  L.  &  T.— 8 


§    92]  THE   INSTRUMENT    OF   DEMISE.  114 

lease  for  a  longer  term.  However,  where  the  terms  of  the  lease  are 
fair  and  reasonable,  and  for  the  benefit  of  the  charity,  the  court,  on 
being  satisfied  of  these  facts,  has  upheld  leases  granted  by  trustees 
for  long  terms,  such  as  eighty  years,  or  even  for  so  long  an  absolute 
term  as  amounts  in  fact  to  an  alienation. ^^'^  Even  where  such  leases 
are  set  aside,  the  court,  whenever  equity  requires  it,  will  protect  the 
rights  of  the  party  who,  acting  under  such  lease,  has  in  good  faith 
made  permanent  improvements  upon  the  demised  land,  and  will 
allow  him  the  reasonable  value  of  such  improvements.^*'^ 

Where  a  trustee  rightfully  and  legally  assumes  in  his  representative 
capacity  the  relation  of  landlord,  he  is  liable  in  that  capacity  to  an- 
swer to  the  tenant  for  the  violation  of  any  duty  which  the  general 
law  attaches  as  an  incident  to  that  relation.  Accordingly,  where  a 
trustee,  duly  authorized,  rented  a  store  belonging  to  the  trust  estate, 
and  in  the  contract  of  rental  bound  himself  by  a  formal  covenant 
to  keep  the  shelving  in  the  store  in  thorough  order  and  repair,  the 
trust  estate  was  liable  in  damages  for  his  failure  to  do  so.  The  ulti- 
mate liability  of  the  trustee  to  the  cestui  que  trust  is  not  involved  in 
such  a  suit.  As  far  as  the  tenant  is  concerned  he  is  entitled  to  a 
judgment  against  the  trust  estate  for  whatever  damages  he  may  have 
sustained.^^^ 

Where  a  mere  naked  trustee,  with  the  consent  of  the  cestui  que  trust 
having  the  beneficial  title  and  right  to  the  possession,  leases  the  trust 
property,  the  leasing  will  be  regarded  as  the  act  of  the  cestui  que  tru^t, 
and  he  will  be  entitled  to  whatever  rights  belong  to  the  landlord.^^^ 

§  92.  Infancy  of  lessee. — Leases  to  infants  are  not  absolutely 
void;  they  are  but  voidable,  and  it  is  not  for  third  persons  to  set  up 
the  defense  of  infancy.  However,  a  lease  to  an  infant  is  voidable 
upon  his  own  application  and  may  be  avoided  by  the  infant  lessee 
when  he  comes  of  age.^''^  But*  he  cannot,  by  putting  an  end  to  the 
lease,  recover  back  any  consideration  which  he  has  paid  for  it;  the 

'"  Richmond    v.    Davis,    103    Ind.  =*"  White  v.  Cannon,  125   111.  412, 

449,  3  N.  E.  130;    Hill  on  Trustees  17  N.  E.  753. 

463.  =«»  Field   v.   Herrick,  101   111.    110, 

^^  Richmond    v.    Davis,    103    Ind.  affirming  5  111.  App.  54;   Griffith  v. 

449,    3    N,    E.    130;     Att'y    General  Schwenderman,  27  Mo.  412;  Holmes 

v.  Baliol  College,  9  Mod.  407;   Att'y  v.  Blogg.  2  Moo.  552,  8  Taunt.  508, 

General  v.  Backhouse,  17  Ves.  283;  4  E.  C.  L.  252;  Cheshire  v.  Barrett, 

Second  Unitarian  Soc.  v.  Woodbury,  4  McCord  L.   (S.  Car.)   241,  17  Am. 

14  Me.  281.  Dec.   735;    Roberts  v.  Wiggin,  1  N. 

'«« Miller  v.  Smythe,  92  Ga.  154,  18  H.  73,  8  Am.  Dec.  38. 
S.  E.  46. 


115  PARTIES  TO  LEASES.  [§  9^ 

law  does  not  enable  him  to  do  that.  He  may,  it  is  true,  avoid  the 
lease ;  he  may  escape  the  burden  of  the  rent  and  avoid  the  covenants ; 
but  that  is  all  he  can  do.-'^^  Lord  Mansfield  once  said  in  delivering 
his  opinion  in  a  famous  case  before  the  House  of  Lords:  "If  an  in- 
fant pays  money  with  his  own  hand  without  a  valuable  consideration 
for  it,  he  cannot  get  it  back  again.""o  In  one  case  the  lessee  who 
was  an  infant  at  the  time  the  lease  was  made,  became  of  age  before 
the  expiration  of  the  term  but  continued  to  occupy  the  leased  prem- 
ises until  the  end  of  it.  Even  if  his  infancy  would  have  been  other- 
wise available,  this  continuance  in  possession  subsequent  to  his  be- 
coming of  age  was  a  ratification  of  the  lease,  and  rendered  all  its 
provisions  obligatory  upon  him.^"  It  is  laid  down  in  an  ancient 
authority  that  if  an  infant  take  a  lease  rendering  rent  and  continue 
in  possession  several  years  after  he  comes  of  age  it  is  a  confirmation 
of  the  contract  ah  initio  and  he  is  bound  for  the  rent  in  arrear.-" 
So  if  the  term  be  from  month  to  month  and  the  infant,  after  reach- 
ing full  age,  holds  over  after  the  expiration  of  a  month,  such  holding 
over  is  a  ratification  of  the  lease  so  as  to  render  him  liable  for  the 
rent  in  arrear  during  his  occupancy  before  as  well  as  after  attaining 
his  majority.2"  Indeed,  the  mere  fact  that  an  infant  has  enjoyed 
the  possession  of  premises  up  to  a  rent  day  has  been  held  to  make  him 
liable  for  rent  even  without  the  concurrent  circumstance  that  he  has 
prior  thereto  come  of  age,"*  There  is  a  dictum  to  the  contrary  by 
Baron  Parke,"^  based  on  a  passage  from  Bacon."«  Chief  Baron. 
Pigot,"'  however,  thought  that  the  proposition  in  Bacon  was  not  borne 
out  by  the  authorities  cited.  He  was  of  opinion  that  if  the  infant 
does  not  avoid  the  tenancy  under  which  he  occupies  before  the  rent 
becomes  due,  the  mere  fact  of  infancy  constitutes  no  defense.  Ac- 
cording to  the  authorities  the  infant  owes  the  rent,  because  he  has 
an  equivalent  in  the  occupation  and  enjoyment  of  the  land.  The 
reason  given  by  Justice  Newton  lies  at  the  root  of  the  infant's  lia- 
bility ;  "he  has  had  a  quid  pro  quo.""^    So  if  the  infant  continues  to 

'«» Holmes  v.  Blogg,  2  Moo.  552,  8  ^*  North     Western      R.      Co.      v. 

Taunt.  508,  4  E.  C.  L.  252.  M'Michael,  5  Ex.  114,  125. 

2'"  Drury  v.  Drury,  2  Eden  39,  72.  =""  Bacon's  Abr.   Infancy  and  Age 

="  Baxter  v.  Bush,  29  Vt.  465.  (I)  8,  where  it  is  said  that  the  case 

'"^Ketsey's    Case,    Cro.    Jac.    320;  in  2  Bulst.  69,  is  the  same  as  Ket- 

Cheshire   v.   Barrett,   4    McCord   L.  say's  Case,  Cro.  Jac.  320,  but  that  in 

(S.    Car.)    241,    17    Am.    Dec.    735;  the    former    report    no    notice    was 

Bacon's  Abr.  Infancy  and  Age  (I)  8.  taken   of   the   fact  that   the   infant 

"^  Harris  v.  Knowles,  26  Wkly.  N.  had  come  of  age. 

Cas.  249.  "'  Blake  v.  Concannon,   Ir.  R.,  4 

^'♦Kirton  V.  Eliott,  2  Bulst.  69.  C.  L.  323. 


§    93]  THE    INSTRUMENT    OF    DEMISE.  IIG 

occupy  without  repudiation,  the  landlord,  on  the  accruing  of  the  rent, 
has  a  vested  right  of  suit  against  the  infant  for  the  rent  which  has  so 
accrued. 

§  93.  Executors  and  administrators. — Except  in  the  states  where 
an  authority  is  conferred  by  statute,  the  executor  or  administrator  is 
not  entitled  or  bound  to  take  charge  of  the  real  estate  of  his  testator 
or  intestate,  unless  he  is  ordered  by  the  probate  court  to  sell  or  lease 
it  to  pay  debts  and  legacies."^  In  about  half  the  states  of  the  United 
States  statutes  exist  which  confer  a  greater  or  less  amount  of  author- 
ity upon  a  personal  representative  to  deal  with  the  real  estate  of  a 
deceased  person.  Even  when  a  right  of  possession  is  conferred  by 
statute,  it  would  cease  when  the  estate  is  settled;  so  a  lease  which 
extends  beyond  the  time  when  the  administration  is  wound  up,  would 
be  voidable  at  the  election  of  the  heirs.  The  right  to  lease  is  conferred 
by  the  statutes  for  the  purpose  of  administration  and  is  limited  to 
that  period.  If,  however,  the  heirs  did  not  elect  to  terminate  the 
lease,  but  recognized  its  validity  and  the  tenancy  under  it  during 
the  term  named,  it  was  afterward  of  no  consequence  that  it  might 
have  been  avoided.  Furthermore,  the  heirs  could  not  ratify  the  lease 
without  accepting  all  its  terms.-^"  But  any  lease  for  a  definite  term 
is  subject  to  termination  by  final  distribution  of  the  estate  and  the 
discharge  of  the  administrator.^^i  In  Michigan  the  statute  gives  to 
the  executor  the  right  to  lease  the  real  estate  of  his  testator  from  year 
to  year  subject  to  the  contingency  that  the  estate  be  not  settled  in  the 
meantime.  The  term  from  "year  to  year"  as  used  in  the  statute 
should  be  construed  according  to  the  well-understood  meaning  of  the 
term.  So  a  lease  by  executors  for  a  two-year  term,  being  void,  cre- 
ates a  tenancy  from  year  to  year,  as  in  ordinary  cases,  terminable  at 
the  expiration  of  one  year  from  the  time  of  the  service  of  a  notice  to 
quit.2^2       jn  Arkansas  the  statutory  authority  of  an  administrator 

*'*21  Hen.  6,  31b.  allow  technical  leases  from  year  to 

"^Woerner  on  Administration,  2d  year.  It  is  well  known  that  farm- 
ed., p.  715;  Grady  v.  Warrell,  105  ing  lands  are  leased  in  the  spring. 
Mich.  310,  63  N.  W.  204.  Such  a  lease  for  a  single  year  does 

^  Smith  V.  Park,  31  Minn.  70,  16  not  permit  the  raising  of  a  crop  of 

N.  W.  490.  wheat,    which    is    the    great    staple 

^'^  Doolan  v.  McCauley,  66  Cal.  476,  crop  of  the  state,  and  without  the 

6  Pac.  130.  privilege  of  raising  which  the  rent- 

*«^  Grady  v.  "Warrell,  105  Mich.  310,  al  value  of  farming  lands  would  be 

63    N.    W.    204.      The    court    says:  lessened.     .     .     We    therefore    con- 

"There  are  reasons  for  thinking  the  elude  that  we  should  construe  this 

legislature   may   have    intended    to  statute  according  to  the  well  under- 


117  PARTIES  TO  LEASES.  [§  94 

to  deal  with  his  intestate's  lands  is  narrowly  confined.  The  authority 
of  the  lawful  administrator  to  sue  for  the  rents  of  real  estate  does  not 
follow.  The  statute  confers  the  power  upon  an  administrator  to 
control  the  lands  of  his  intestate  for  the  purpose  of  paying  debts. 
His  authority  in  that  respect  is  derived  solely  from  the  statute,  for  at 
common  law  the  administrator  had  nothing  whatever  to  do  with  the 
lands  of  his  intestate.  After  the  lands  were  no  longer  needed  for  the 
purposes  of  administration,  the  administrator  would  have  no  power 
to  control  the  rents."^^  In  Utah  the  statutory  authority  of  executors 
to  lease  land  belonging  to  their  intestate  is  such  that  written  authority 
from  the  others  is  necessary  to  enable  a  minority  to  contract  for  the 
estate  if  the  others  are  in  the  state  and  not  under  disability.-*"'  So 
where  one  of  six  executors  executed  a  lease  without  written  authority 
from  the  other  five,  such  instrument  was  invalid  by  the  statute  of 
frauds. ^^^ 

Moreover,  if  an  administrator  leases  land  in  pursuance  of  a  power 
conferred  by  statute  he  must  comply  with  the  requirements  of  the 
statute  as  to  the  mode  of  effecting  the  contract.  If  the  statute  enacts 
that  the  lease  shall  be  made  at  public  outcry,  a  renting  by  private 
arrangement  would  be  invalid  and  would  not  in  any  way  affect  the 
right  of  devisees.286  The  power  and  duty  of  an  administrator  to 
lease  lands  will  authorize  him  to  make  such  repairs  as  are  necessary 
to  make  the  lands  tenantable.  Otherwise  it  would  be  impossible  for 
the  power  to  be  justly  and  prudently  exercised.  But  even  if  without 
authority  to  stipulate  with  the  tenant  for  the  making  of  repairs,  the 
administrator  could  not  avoid  the  stipulation.  It  would  be  binding 
upon  him  personally  and  would  inhere  to  the  contract  of  renting,  and 
whoever  claimed  its  enforcement  would  take  it  cum  onere.-^''  As  a  gen- 
eral rule,  a  trustee  cannot  avoid  his  contracts,  or  nullify  his  acts,  be- 
cause they  may  be  in  excess  or  in  abuse  of  his  authority. 


288 


§  94.  Mortgagor  and  mortgagee.— A  lease  already  existing  at  the 
date  of  the  mortgage  is  in  no  way  invalidated  by  the  giving  of  the 
mortgage.  It  is  then  a  paramount  interest,  and  the  mortgage  is  sub- 
stood  meaning  of  the  term  'from  "^o  Martin  v.  Williams,  18  Ala.  190; 
year  to  year.'     .     ."  Chighizola  v.  Le  Baron,  21  Ala.  406. 

^^  Stewart  v.  Smiley,  46  Ark.  373 ;         ""  Vandegrift   v.    Abbott,    75    Ala. 
Chowning  v.   Stanfield,  49  Ark.  87,     487. 
91    4  S.  W.  276.  ^'  Stoudemeier  v.   Williamson,   29 

'^'2  Comp.  Laws  1888,  §  4030.  Ala.  558;  Farrow  v.  Bragg,  30  Ala. 

^5  Utah  L.  &  T.  Co.  v.  Garbutt,  6     261;  Riddle  v.  Hill,  51  Ala.  224. 
Utah  342,  23  Pac.  758. 


§    95]  THE    INSTEUMEXT    OF   DEMISE.  118 

ject  to  it.  The  mortgagee  has  only  the  rights  of  the  mortgagor  as 
against  the  lessee.  The  mortgagor  may  lawfully  receive  the  rents 
until  the  mortgagee  interferes.  A  mortgage  of  premises  already 
leased  operates  as  an  assignment  of  the  reversion.  The  rights  and 
liabilities  of  the  parties  under  a  lease  made  after  the  mortgage  are 
very  different  from  those  which  exist  when  the  mortgage  is  made 
after  the  lease.  There  is  then  no  privity  of  contract  between  the 
mortgagee  and  the  lessee  of  mortgaged  land.  The  mortgagee  may 
treat  a  lessee  holding  under  a  lease  from  the  mortgagor  as  a  tres- 
passer, and  eject  him;  but  unless  the  tenant  has  attorned  to  him,  he 
cannot  distrain  or  bring  an  action  for  rent,  as  there  is  no  relation  of 
landlord  and  tenant  between  them.  A  mortgagor  cannot  make  a 
lease  of  the  mortgaged  premises  which  will  be  binding  upon  the 
mortgagee.^®^  If  the  mortgagee  obtains  possession  of  the  property 
after  the  maturity  of  the  mortgage  and  pending  the  right  of  the  mort- 
gagor to  redeem  and  leases  it,  such  lease  will  be  determined  by  the 
exercise  of  the  mortgagor's  right  to  redeem.^****  The  purchaser  at  a 
foreclosure  sale  under  a  mortgage  senior  to  an  outstanding  lease 
does  not  thereby  become  the  landlord  of  the  lessee  and  cannot  recover 
rent  from  him  without  an  attornment. ^^^  Mere  notice  of  the  sale 
does  not  make  the  tenant  liable  to  such  purchaser.^^^ 

§  95.  Infancy  of  lessor. — The  general  rule  of  law  undoubtedly 
is  that  a  grant  of  a  leasehold  estate  by  an  infant  lessor  is  voidable 
by  him  but  is  not  absolutely  void.  However,  it  seems  that  an  infant 
must  act  in  person  to  grant  a  lease  which  is  prima  facie  valid,  and  if 
an  agent  appointed  by  the  infant  attempts  to  do  so,  the  instrument 
is  absolutely  void.  Baron  Parke  said  on  this  point :  "An  agreement 
by  an  agent  cannot  bind  an  infant.  If  an  infant  appoints  a  person 
to  make  a  lease,  it  does  not  bind  the  infant,  neither  does  his  ratifica- 
tion bind  him.  There  is  no  doubt  about  the  law;  the  lease  of  an 
infant  to  be  good  must  be  his  own  personal  act."  ^  93  go  it  was  ruled 
in  an  early  case  that  a  total  failure  of  consideration  rendered  a  lease 
absolutely  void.^*^*     But  any  valuable  consideration  seems  sufficient 

^'^  Jones  on  Mortgages,  ch.  XVIII.  216,  Gawdy  "conceived  that  this 
='*<'Willard  v.  Harvey,  5  N.  H.  252.  lease  for  years  made  by  the  infants. 
'''Reed  v.  Bartlett,  9  111.  App.  267;  without  deed  and  without  rent  re- 
Rogers  v.  Humphreys,  4  A.  &  B.  299.  served  is  not  void,  so  as  every 
'°'  Evans  v.  Elliot,  9  A.  &  E.  342.  stranger  shall  take  advantage  of  it, 
=*' Doe  V.  Roberts,  16  M.  &  W.  778,  but  only  voidable;  for  an  infant 
781.  may  make  a  bond,  and  a  contract 
=**  In  Humphreston's  Case,  2  Leon,  for  his  commodity  and  profit  and 


119  PARTIES  TO  LEASES.  [§  96 

and  an  ordinary  lease  made  by  an  infant  is  not  void  but  voidable 
only,  notwithstanding  that  the  rent  reserved  is  not  the  best  obtain- 
able. A  lease  made  by  an  infant,  so  reserving  a  rent,  is  not  avoided 
by  a  lease  of  the  same  lands,  made  to  a  third  person  by  the  infant 
on  his  attaining  his  full  age.  To  avoid  a  lease  made  by  an  infant, 
under  which  the  lessee  is  in  possession,  upon  the  lessor  attaining 
twenty-one  years  of  age,  some  act  of  notoriety,  such  as  ejectment, 
entry,  or  demand  of  possession,  is  requisite.^® ^  And,  according  to 
modern  authority,  it  would  seem  that  an  infant  cannot  during  in- 
fancy avoid  a  lease  made,  reserving  a  rent  for  his  or  her  benefit. 
There  are  express  decisions  to  that  effect,^""  and  the  law  is  so  stated 
by  text  writers.2^^  ^  passage  in  Coke  on  Littleton^^s  is  usually  cited 
to  the  contrary  effect,  but  that  was  under  the  notice  of  the  court  in 
one  of  the  decisions  referred  to.  In  another  case  the  very  learned 
Judge  Buller  says:  "Notwithstanding  the  decisions  in  Co,  Lit., 
which  is  also  laid  down  in  Brownlow,  I  will  freely  own  that  I  am  of 
opinion  against  the  lessor  of  the  plaintiff  on  the  other  ground;  for 
all  the  modern  cases  have  expressly  held  that  an  infant  cannot  avoid 
a  lease  which  is  for  his  own  benefit."^''^  It  has  been  laid  down  as  a 
general  principle,  that  if  an  agreement  be  for  the  benefit  of  the  in- 
fant at  the  time,  it  shall  bind  him.^*'° 

§  96.  Although  a  room  may  properly  he  regarded  as  a  necessary, 
it  does  not  follow  that  a  lease  to  an  infant  can  be  supported  on  the 
ground  that  the  premises  demised  were  a  necessary  for  him.     An 

the  same  shall  bind  him;  as  for  his  comes  of  age,  for  that  if  the  grantee 

meat  and   drink,   apparel,   etc.,  but  should   then  distrain   for  the   rent, 

if  upon  such  lease  he  had  reserved  though  the  other  may  bring  an  ac- 

a  small  rent,  as  one  penny  where  tion  of  trespass,  yet  he  cannot  plead 

the  land  was  worth  £100  per  annum,  non  concessit;  for  the  deed  is  only 

such  a  lease  had  been  void;  and  in  voidable  by  the  showing  of  his  in- 

this  case  this  lease  was  made  upon  fancy,  and  not  void  because  it  was 

the  land  and  was  made  for  to  try  delivered  with  his  own  hand.     Note 

the  title  to  it,  which  is  a  good  con-  in  3  Mod.  310. 

sideration  and  to  the  profit  of  the  ^''^  Slator  v.  Brady,  14  Ir.  C.  L.  61; 

infant    and    for    his    advancement  Hartshorn  v.  Earley,  19  W.  C.  C.  P. 

and  the  lease  is  not  void."  139;  Lipsett  v.  Perdue.  18  Ont.  575. 

=»^  Slator  V.  Brady,  14  Ir.  C.  L.  61.  ""  Woodfall's  Landlord   &  Tenant 

In    the    case   of    Hudson   v.    Jones,  40.  41. 

Trinity  Term,   6  Ann.  B.   R.,  it  is  =*»  Co.  Lit.  380b. 

said  to  have  been  held  that  if  an  ^^'Maddon   v.   White.    2    Term   R. 

infant  grant  a  rent  charge  out  of  159. 

his  land  it  is  not  absolutely  void,  ''""Zouch  v.  Parsons,  3  Burr.  1794; 

but  only  voidable  by  him  when  he  Drury  v.  Drury,  5  Bro.  P.  C.  570. 


§    97]  THE   IXSTRU:\IEXT    OF   DEillSE.  120 

infant  cannot  make  a  binding  executory  agreement  even  to  purchase 
necessaries.  So  long  as  the  infant  actually  occupied  the  room  as 
his  sole  lodging  room,  it  was  clearly  a  necessary  for  him,  for  the  use 
of  which  the  law  would  compel  him  to  pay,  but  the  question  is  only 
as  to  liability  for  rent  after  occupation  ceased.  The  transaction 
may  be  regarded  as  an  agreement  on  the  part  of  the  landlord  to  sup- 
ply the  infant  with  necessary  lodgings  for  the  year,  and  on  the 
part  of  the  infant  as  an  executory  agreement  to  pay  an  agreed  price 
for  them  from  week  to  week;  or  it  may  be  regarded  as  what  on  the 
whole  the  parties  intended  it  to  be,  a  parol  lease  under  which  posses- 
sion was  taken,  and  an  executory  agreement  on  the  part  of  the  infant 
to  pay  rent.  If  regarded  in  the  former  light  the  defense  of  infancy 
is  a  good  defense;  for  in  that  case  the  suit  is  upon  an  executory  con- 
tract to  pay  for  necessaries  which  the  infant  refused  to  take  and  which 
therefore  he  may  avoid.  If  the  transaction  is  regarded  as  a  lease 
under  which  possession  was  taken,  executed  on  the  part  of  the  land- 
lord, with  a  promise  or  agreement  on  the  part  of  the  infant  to  pay 
rent  weekly,  infancy  is  equally  a  defense.  As  a  general  rule,  with 
but  few  exceptions,  an  infant  may  avoid  his  contracts  of  every  kind, 
whether  detrimental  to  him  or  not  and  whether  executed  or  executory. 
The  agreement  here  does  not  come  within  any  of  the  exceptions  to 
the  general  rule.^°^  Where  an  infant  agrees  to  pay  a  stipulated  price 
for  necessaries,  the  party  furnishing  them  recovers  not  necessarily 
that  price  but  only  the  fair  and  reasonable  value  of  the  necessaries.^''^ 

§  97.  Assignment  by  infant. — Transfers  of  the  reversion  do  not 
affect  the  term  which  precedes  it,  so  that  the  assignment  of  the  re- 
versionary interest  to  an  infant  does  not  render  voidable  an  outstand- 
ing lease.  In  case  an  infant  acquires  the  reversion  upon  a  periodi- 
cal lease,  he  must  give  the  required  notice  to  quit  the  same  as  other 
lessors.^"^  Where  an  infant  lessee  assigns  the  term,  the  lessee  is 
liable  to  pay  rent  to  the  lessor  during  his  occupancy,  until  the  minor 
disaffirms  the  assignment.  The  foundation  for  this  is  that  the  as- 
signee has  enjoyed  the  premises,  and  his  occupation  has  been  legal, 
and  the  assignment  being  voidable  and  not  void,  does  not  relate 
back  to  invalidate  everything  before  it.^°* 

5°' Gregory  v.  Lee,  64  Conn.  407,  527,  6  N.  E.  761;  Keener's  Quasi 
30  Atl.  53.  Contracts,  p.  20. 

^°=  Earle  V.  Reed,  10  Mete.  (Mass.)  "»^  Maddon  v.  White,  2  Term  R. 
387;    Barnes    v.    Barnes,    50    Conn.     159. 

572;  Trainer  v.  Trumbull,  141  Mass.        ^"^  Rothschild  v.  Hudson,  6  Wkly. 

L.  Bui.  752,  8  Ohio  Dec.  R.  259. 


131  DESCRIPTION    OF    PREMISES.  [§    98 


4.     Description  of  Premises. 

§  98.    Where  a  lessee  has  not  entered  into  occupation,  the  lease 
must  with  reasonable  certainty  describe  the  land  demised,  either  by 
particular  words  or  by  reference  to  somethiag  by  which  its  location 
can  be  determined.     Unless  it  does,  a  lessee  who  has  not  entered 
cannot  be  held  for  rent.^**^     The  authorities  establish  the  proposi- 
tion that  a  lease  or  contract  for  the  conveyance  of  land  must,  to  be 
enforced,  contain  a  description  of  the  land.     But  where  the  descrip- 
tion, as  far  as  it  goes,  is  consistent,  without  being  sufficiently  com- 
plete, it  may  be  completed  by  extrinsic  parol  evidence,  provided  a 
new  description  is  not  introduced  into  the  body  of  the  contract. 
Parol  evidence  cannot  be  given  first  to  describe  the  land  and  then  to 
apply  the  description;  such  evidence  must  not  contradict  the  written 
instrument,  but  aid  it.^*'®     Where  a  lease  described  the  premises  as 
a  farm  belonging  to  the  lessor,  known  as  "Rose  Hill,"  but  did  not 
show  the  state,  county  or  civil  district  in  which  the  farm  was  situated, 
it  was  nevertheless  valid,  as  it  was  shown  on  the  face  of  the  lease 
that  both  parties  resided  in  the  same  county.     It  could  be  shown  by 
extrinsic  evidence  that  a  farm  lying  in  that  county  had  been  owned 
by  the  lessor  named   and  that  it  was   known  generally   as   "Rose 
Hill."^"^     The  parol  proof  thus  resorted  to  is  not  to  introduce  any 
additional  evidence  as  to  the  term.s  of  the  contract  but  simply  to  as- 
certain if  there  be  lands  or  property  known  by  the  name  or  descrip- 
tion given  in  the  writing  and  where  that  property  is.^^^     In  applying 
a  lease  to  the  land,  oral  evidence  is  competent  to  show  where,  at  the 
time  of  the  execution  of  the  lease,  the  streets  mentioned  in  it  were 
and  what  buildings  there  were  at  the  corner  of  such  streets.     The 
lease  must  be  construed  with  reference  to  the  existing  geography  of 
the  premises.     But  parol  evidence  of  the  practical  construction  given 
to  a  lease  by  the  subsequent  acts  of  the  parties  thereto  is  not  admis- 
sible unless  the  language  in  the  description  of  the  property  leased 
is  doubtful.^"^     The  general  rule  as  to  the  construction  of  grants  is 

^=  Bingham  v.  Honeyman,  32  Ore.  Crawford  v.   Morris,  5  Grat.    (Va.) 

129,  51  Pac.  735,  52  Pac.  755;  Noyes  90. 

V.   Stauff,  5  Ore.   455;    Patterson  v.  ^""Dougherty     v.     Chestnutt,     86 

Hubbard,  30  111.  201.  Tenn.  1,  5  S.  W.  444. 

^-^  Baldwin  V.  Kerlin,  46  Ind.  426;  ^"^  Guy    v.    Barnes,    29    Ind.    103; 

Miller   v.    Campbell,    52    Ind.    125;  Johnson      v.      Kellogg,      7      Heisk. 

Pulse  V.  Miller,  81  Ind.  190;  Weaver  (Tenn.)    262;   House  v.  Jackson,  24 

V.   Shipley,   127   Ind.   526,   27   N.   E.  Ore.  89.  32  Pac.  1027. 

146;    Guy   v.   Barnes,   29   Ind.   103;  ^  Durr  v.  Chase,  161  Mass.  40,  36 

N.  E.  741. 


§    99]  THE   INSTRUMENT   OF   DEMISE.  122 

that  if  there  are  certain  particulars  once  sufficiently  ascertained 
which  designate  the  thing  intended  to  be  granted,  the  addition  of  a 
circumstance,  false  or  mistaken,  will  not  frustrate  the  grant  ;^^*'  and 
this  general  rule  has  been  held  to  apply  to  grants  by  way  of  lease.^^^ 
Thus  where  premises  were  correctly  described  by  number  on  a  sur- 
veyor's plan  and  the  lessee  occupied  and  paid  rent,  a  further  erroneous 
description  by  metes  and  bounds  could  be  rejected  as  surplusage.^^- 
A  technical  misdescription  of  the  leased  premises  is  immaterial  in 
an  action  for  rent,  where  the  property  is  otherwise  so  defined  as  to 
fully  advise  the  parties  of  the  subject-matter  of  the  lease,^^^  or 
where  the  tenant  has  been  in  occupation  of  the  premises  during  the 
time  for  which  rent  is  claimed.^ ^* 

A  misstatement  of  the  quantity  of  land  included  in  a  given  de- 
scription will  not  control  but  will  give  way  to  the  other  parts  of  the  de- 
scription.^ ^^ 

§  99.  The  practical  location  of  the  boundaries  of  the  leased  prem- 
ises, coupled  with  the  subsequent  possession  of  the  same  by  the  ten- 
ants by  and  with  the  landlord's  knowledge  and  consent,  is  a  sufficient 
location  of  the  property. ^^'^  The  lessee  cannot  escape  liability  for 
the  rent  provided  for  in  a  lease,  where  he  enters  into  possession,  on 
the  ground  that  the  description  of  the  premises  was  uncertain.^^'^ 
This  is  in  accord  with  the  general  rule  that  parol  evidence  of  the  prac- 
tical construction  given  by  the  parties,  by  acts  of  occupancy,  recogni- 
tion of  monuments  or  boundaries,  is  admissible  for  the  purpose  of 
identifying  the  land  and  in  aid  of  the  interpretation  of  the  deed.^^^ 
As  between  the  parties  to  a  lease  extrinsic  evidence  is  admissible  to 

^°  Jackson  v.  Brownson,  7  Johns.  ^'  Jackson  v.  Barringer,  15  Johns. 

(N.  Y.)   227;  Jackson  v.  Wilkinson,  (N.  Y.)  471. 

17    Johns.     (N.    Y.)     146;     Doe    v.  "« Weaver  v.  Shipley,  127  Ind.  526, 

Thompson,  5  Cow.  (N.  Y.)  371.  27  N.  E.  146;  Jackson  v.  Perrine,  35 

="  Lush  V.  Druse,  4  Wend.  (N.  Y.)  N.   J.   Law   137;    Lush  v.   Druse,   4 

313;    Hibbard    v.    Hurlburt,   10   Vt.  Wend.   (N.  Y.)   313;   Pierce  v.  Min- 

173;    Hamilton   v.   Ames,    74   Mich,  turn,  1  Cal.  470;  Richards  v.  Snider, 

298,  41  N.  W,  930;   Andrew  v.  Car-  11  Ore.  197,  3  Pac.  177. 

lile,  4  Colo.  App.  336,  36  Pac.  66.  '"  Whipple  v.   Shewalter,  91   Ind. 

''' Lush  v.  Druse,  4  Wend.  (N.  Y.)  114;    Hoyle   v.    Bush,   14   Mo.   App. 

313;   Hay  v.  Cumberland,  25  Barb.  408. 

(N.   Y.)    594;    Tumbridge   v.   Read,  ^"  Stone  v.  Clark,  1  Mete.  (Mass.) 

109  N.  Y.  641,  16  N.  E.  534.  378;  Waterman  v.  Johnson,  13  Pick. 

="  Andrew  v.  Carlile,  4  Colo.  App.  (Mass.)    261;    Ballance   v.    City    of 

336,  36  Pac.  66.  Peoria,  180  111.  29,  54  N.  E.  428,  re- 

'"Hoyle  V.  Bush,  14  Mo.  App.  408;  versing  70  111.  App.  546. 
Whipple  v.  Shewalter,  91  Ind.  114. 


123  DESCRIPTION    OF    PREMISES.  [§    100 

show  that  land  described  in  the  lease  as  about  four  acres  was  set  off  by 
the  parties  by  metes  and  bounds.  Had  there  been  any  reference, 
however  vague,  in  the  lease  to  the  demarcation  resorted  to  by  the 
parties,  there  could  be  no  doubt  that  the  proof  of  such  demarcation 
might  be  shown  by  parol.  From  the  terms  of  this  lease  it  did  appear 
that  they  had  in  mind  a  particular  tract  of  four  acres  and  "we  see 
no  reason,"  say  the  court,  "why  extrinsic  evidence  to  identify  this 
tract  was  inadmissible.  It  must  be  remembered,  however,  that  we 
are  discussing  this  question  only  as  it  affects  the  immediate  parties 
to  the  instrument."^ ^®  A  gas  lease  of  eighty  acres  of  a  certain  tract, 
reserving  sixty  acres  around  the  buildings  to  be  specified  by  the  lessor, 
is  a  valid  description  when  the  lessor  is  ready  and  willing  at  all 
times  to  designate  the  sixty  acres  and  he  need  not  do  so  till  the  lessee 
is  ready  to  begin  operations.^^** 

After  the  lessee  had  occupied  the  premises  and  paid  rent  for  them, 
he  cannot  raise  the  objection  of  insufficiency  of  description  because 
such  defects  were  cured  by  possession.^  ^^  Where  the  lessee  has  oc- 
cupied during  the  term  of  the  lease,  it  is  not  necessary  to  consider 
whether  the  uncertainty  of  the  words  of  description  is  helped  by  the 
fact  of  occupation  at  the  time,  so  far  as  to  make  the  instrument  a 
good  demise.  If  the  lessee  kept  possession  under  it,  whether  it  is 
good  or  bad,  the  covenant  is  the  measure  of  his  liability  to  pay.  He 
cannot  take  the  benefit  and  repudiate  the  liability  for  rent,  upon  the 
ground  that  the  benefit  was  not  conveyed  to  him  in  effectual  terms. 
Even  if  the  covenant  did  not  bind  as  such,  the  law  would  imply  a 
promise  to  pay  at  the  rate  expressed  in  the  covenant.^"  Nor  can 
the  lessor  object  to  a  description  in  the  lease  after  the  lessee  has  gone 
into  possession  of  land  designated  by  the  lessor. 


323 


§  100.  A  defective  or  totally  inadequate  description  cannot  be 
cured  by  parol  evidence  where  the  instrument  to  be  valid  must  be 
in  writing.  It  is  permissible  for  an  instrument  to  refer  to  another 
description  to  identify  the  premises;  but  a  reference  to  a  conversa- 
tion for  this  purpose  would  not  be  sufficient  because  of  the  require- 

2«  Schneider  v.  Patterson,  38  Neb.  N.  E.  16;  Appleton  v.  O'Donnell,  173 

680,  57  N.  W.  398.  Mass.  398.  53  N.  E.  882;   McLennan 

=*=»  Indianapolis   Nat.    Gas.    Co.    v.  v.  Grant,  8  Wash.  603,  36  Pac.  682. 

Spaugh    17  Ind.  App.  683,  46  N.  E.  '--Appleton      v.      O'Donnell,      173 

691         '  Mass.  398,  53  N.  E.  882. 

=«  Pierce  v.  Minturn,  1  Cal.  470;  '"-'Weaver  v.  Shipley,  127  Ind.  526. 

Bulkley  v.  Devine,  127  111.  406,  20  27  N.  E.  146. 


§    101]  THE   INSTRUMENT    OF   DEMISE.  124 

ment  of  the  statute  of  frauds  that  the  lease  be  in  writing. ^^*  If  the 
paper  purporting  to  be  a  lease  does  not  describe  the  property  leased, 
the  ambiguity  is  patent,  and  parol  evidence  is  not  admissible  to  ex- 
plain it.^-^  If  there  is  no  ambiguity  or  exception  in  a  description, 
the  general  rule  is  that  the  language  used  must  control  in  determin- 
ing what  lands  are  included  in  a  lease.^^^ 

§  101.  "The  question  whether  a  particular  place  is  a  part  of  the 
demised  premises  does  not  depend  exclusively  on  the  question  of 
boundary  but  also  upon  the  question  of  intention,  which  may  be 
determined  by  bringing  in  aid  of  the  words  of  the  demise  such  extrin- 
sic facts  explanatory  of  the  subject  and  all  the  rights  of  the  parties 
as  may  show  the  meaning  of  the  instrument  and  the  intention  of 
the  parties."^ ^^  In  a  conveyance,  in  general  terms,  of  a  house,  every- 
thing that  belongs  to  it  passes  with  it,  and  whether  a  thing  is  parcel 
of  the  thing  demised  is  always  a  matter  of  evidence.  Thus  parol 
evidence  was  admitted  to  show  that  the  parties  could  not  have  in- 
tended to  embrace  in  the  lease  a  cellar  situated  under  the  yard  which 
was  demised.^^*  A  description  of  an  entire  building  such  as  a  hotel 
building  by  the  name  by  which  the  hotel  business  is  known  is  open 
to  testimony  upon  the  point  as  to  what  the  name  ordinarily  meant 
and  included  in  common  parlance.  Whether  the  entire  building  or 
only  the  part  used  for  hotel  purposes  was  intended  by  the  parties  in 
the  contract  could  be  legitimately  determined  by  parol  testimony.^ ^® 
It  was  argued  that  "house"  means  the  whole  of  a  house,  and  not  part 
of  a  house ;  that  it  includes  all  upon  the  same  foundation  and  covered 
by  the  same  roof.  This  was  admitted  to  be  an  argument  of  consider- 
able weight  if  the  term  were  used  in  its  generic  sense,  as  "my  house, 
situated  in"  such  a  town  or  such  a  street.  But  it  was  plainly  used  here 
as  a  proper  name  or  specific  designation.  A  hotel  may  be  complete 
in  all  its  parts  without  including  separate  tenements  under  it  and  is 
often  designated  by  the  term  "house,"  so  in  a  demise  for  a  term  of  years 
with  the  furniture  of  the  hotel,  it  leaves  the  matter  questionable.^^'' 

==*  Jarboe  v.  Mulry,  49  N.  Y.  Super.  §  286;   Hibbard  v.  Hurlburt,  10  Vt. 

Ct.  525;  Wright  v.  Weeks,  25  N.  Y.  173. 

153.  ''«Cary  v.  Thompson,  1  Daly   (N. 

^==Noyes  v.  Stauff,  5  Ore.  455.  Y.)  35;  Doe  v.  Burt,  1  Term.  R.  701, 

==«Ballance  v.  City  of  Peoria,  180  704. 
111.   29,   54   N.   E.   428,   reversing  70  '^Harris  v.  Dub,  57  Ga.  77;    Sar- 
in. App.  546;    Fowler  v.  Black,  136  gent  v.  Adams,  3  Gray   (Mass.)    72, 
111.  363,  26  N.  E.  596.  63  Am.  Dec.  718. 

^^^  Trimble   v.   Ward,    14    B.    Mon.  =''"  Sargent     v.     Adams,     3     Gray 

(Ky.)  8,  citing  Doe  v.  Burt,  1  Term  (Mass.)  72,  63  Am.  Dec.  718. 
R.     701;     1     Greenleaf's    Evidence, 


1 


125  DESCRIPTION'    OF    PKEMIdES.  [§    103 

The  word  "furniture"  employed  in  a  lease  of  "a  hotel  with  the 
furniture  therein/'  includes  that  which  furnishes  or  with  which  an}'- 
thing  is  furnished  or  supplied, — whatever  must  be  supplied  in  a  house, 
a  room,  or  the  like,  to  make  it  habitable,  convenient  or  agreeable; 
goods,  vessels,  utensils  and  other  appendages  necessary  or  convenient 
for  housekeeping;  whatever  is  added  to  the  interior  of  a  house  or 
apartment  for  use  or  convenience.^^^  But  the  term  "appurtenances" 
was  held  not  to  include  an  iron  kettle  for  heating  water  situated  on 
the  lessor's  adjacent  lot,  not  included  in  the  lease  and  not  indispen- 
sable to  the  enjoyment  of  the  hotel,  though  used  by  the  lessor  in  con- 
nection therewith.^^- 

§  102.  A  lease  of  a  building  eo  nomine  is  a  lease  of  the  land  on 
which  the  building  stands.  Land  may  be  granted  or  leased  by  the 
description  of  a  building  on  it.  "And  by  the  grant  of  a  house," 
we  find  it  said  in  Shepard's  Touchstone,  "the  ground  whereon  it 
doth  stand  doth  pass."^=*^  Kearly  two  centuries  ago  it  was  adjudged 
by  the  court  of  King's  Bench  that  a  garden  may  be  said  to  be  parcel 
of  a  house,  and  by  that  name  will  pass  in  a  conveyance.^^*  So  the 
general  rule  is  well  settled  today  that  the  grant  of  a  house,  store, 
mill  or  other  building  carries  with  it  the  land  under  the  building.^^^ 
A  case  may  be  taken  out  of  this  general  rule  if  the  lease  or  other 
grant  shows  that  it  was  the  intention  of  the  parties  that  the  building 
only  or  a  room  in  it  should  pass,  and  not  the  land.  But  there  is 
nothing  to  indicate  that  such  was  the  intention  of  the  parties  where 
the  lease  is  of  the  whole  building.  The  plain  intent  of  a  clause  re- 
quiring the  lessee  to  pay  all  taxes  assessed  upon  the  premises  is  that 
they  are  to  pay  taxes  upon  the  whole  estate  including  the  land.  A 
provision  that  if  the  premises  are  destroyed  by  fire,  the  rent  shall 
be  suspended  until  the  premises  are  put  in  proper  condition  for  use, 
by  the  lessor,  implies  that  the  lease  is  to  continue  though  the  build- 

^^Bell  v.  Golding,  27  Ind.  173.  5   Ohio  477;    Lanpher  v.  Glenn,  37 

='=  Barrett  v.  Bell,  82  Mo.  110,  52  Minn.  4,  33  N.  W.  10;  Winchester  v. 

Am.  R,  361.  Hees,  35  N.  H.  43;   Wilson  v.  Hun- 

^^^  Shep.  Touch.  90.  ter,  14  Wis.  683,  80  Am.  Dec.  795; 

''*  Smith  v.  Martin,  2  Saund.  400.  Blake  v.  Clark,  6  Me.  436;  Forbush 

^="Humiston   &c.    Co.   v.   Wheeler,  v.  Lombard,  13  Mete.    (Mass.)   109; 

175  111.  514,  51  N.  E.  893,  affirming  Oliver  v.  Dickinson,  100  Mass.  114; 

70  111.  App.  349;  Leiferman  v.  Osten,  Sherman    v.    Williams,    113    Mass. 

167  111.  93,  47  N.  E.   203,  affirming  481;  Rogers  v.  Snow,  118  Mass.  118; 

64    111.    App.    578;    Chesebrough    v.  Bacon  v.  Bowdoin,  22  Pick.  (Mass.) 

Pingree,  72  Mich.  438,  40  N.  W.  747,  401. 

1  L.  R.  A.  529;  Winton  v.  Cornish, 


§    102]  THE    IXSTRUMEXT    OF   DEillSE.  12G 

ing  should  be  destroyed.^^®  However,  a  lease  of  certain  apartments 
in  a  building  is  not  to  be  considered  as  a  lease  of  land  but  only  as 
a  lease  of  apartments  in  the  building  distinct  from  the  land.^^^  This 
is  the  rule  where  the  building  is  destroyed  by  fire,  the  cases  holding 
that  where  the  building  containing  the  apartments  leased  is  destroyed 
by  fire,  the  lease  is  terminated.^^^  Not  only  the  land  under  the 
building  but  the  land  under  its  overhanging  projections  passes.  Thus 
land  under  the  eaves  of  a  house  was  included  in  a  lease  and  passed 
as  parcel  under  the  description  of  the  'Tjrick  building,"  as  the  eaves 
are  a  part  of  the  building,  the  land  under  them  is  included  in  the 
description  when  owned  by  the  grantor.  Where  land  is  conveyed, 
bounded  on  a  house  as  a  monument,  the  land  to  the  edge  of  the  eaves 
only  passes,  that  being  the  extreme  part  of  the  building;  so  where 
the  house  itself  is  granted  or  demised,  the  extreme  parts  of  the  house 
are  the  bounds  and  limits  of  the  conveyance,  and  such  title  as  the 
grantor  has  to  the  land  thus  occupied  by  the  whole  house  passes  by 
the  grant  or  demise.^^^ 

"In  cases  where  different  rooms  in  the  same  building  are  leased 
to  separate  tenants,"  said  the  Massachusetts  court,  "the  situation  of 
the  property  and  the  nature  of  the  tenures  exclude,  the  idea  that  each 
tenant  takes  an  estate  for  years  in  the  land.  Such  estates  existing 
at  the  same  time  in  different  tenants  are  inconsistent  and  impos- 
sible. .  .  .  The  bank  and  Lawrence  cannot  both  take  an  estate 
for  years  of  the  same  land,"^*°  The  owner  can  grant  the  right  to 
take  all  the  minerals  underneath,  or  those  twenty  feet  beneath  the 
surface  only;  to  dig  all  the  turf;  to  inhabit  a  cave,  if  there  be  one; 
to  occupy  a  room  in  the  third  story;  to  occupy  the  second  story,  a 
room  in  the  first  story  or  the  cellar  or  a  part  of  the  cellar.  By  such 
grants  the  land  does  not  pass.  The  lessees  of  a  middle  story  of  aJ 
house  are  limited  above  and  below  as  well  as  on  the  sides,  yet  the 
land  is  as  necessary  to  sustain  their  part  of  the  house  as  that  be- 
low.^*^  So  a  lease  of  a  basement  and  first  story  of  a  building  without 
anything  more  does  not  transfer  the  land  upon  which  the  building 

^''Rogers  v.  Snow,  118  Mass.  118.  Ala.  356,  94  Am.  Dec.  654;  Harring- 

"'  Kerr  v.   Merchants'   Exch.   Co.,  ton  v.  Watson,  11  Ore.  143,  3  Pac. 

3  Edw.  Ch.   (N.  Y.)   316;  Leiferman  173;  Leiferman  v.  Osten,  167  111.  93, 

V.  Osten,  167  111.  93,  47  N.  E.  203,  47  N.  E.  203,  affirming  64  111.  App. 

affirming  64  111.  App.  578;   Lanpher  578. 

V.  Glenn,  37  Minn.  4,  33  N.  W.  10.  ^*  Sherman  v.  Williams,  113  Mass. 

"^Stockwell   V.   Hunter,   11   Mete.  481. 

(Mass.)  448;  Womack  v.  McQuarry,  =*"  Shawmut  &c.   Bank  v.   City  of 

28   Ind.   103;    Graves  v.   Berdan,  26  Boston,  118  Mass.  125,  per  Dewey,  J. 

N.  Y.  498;  McMillan  v.  Solomon,  42  ^Winton  v.  Cornish,  5  Ohio  477. 


127  DESCRIPTION    OF    PREMISES.  [§    103 

stands  to  the  lessee  so  that  a  mechanic  could  claim  a  lien  for  ma- 
terials under  the  mechanic's  lien  law.^*^ 

A  lease  of  a  building,  described  as  being  certain  numbers  on  a 
certain  street,  was,  however,  held  to  carry  the  land  as  well  as  the 
building,  although  certain  portions  of  the  building  were  reserved  to 
the  use  of  the  lessor.  It  was  contended  that  on  account  of  the  ex- 
ceptions from  the  general  description,  the  lease  was  to  be  regarded 
as  a  lease  merely  of  portions  of  the  building.  On  the  contrary,  the 
lease  was  not  of  certain  portions  of  the  building  without  the  land, 
but  of  the  land  and  building  except  certain  minor  portions  of  the 
building.  The  legal  rights  of  the  parties  would  be  the  same  as  if 
the  lessor  had  leased  the  excepted  portions  to  a  third  person  instead 
of  retaining  them.  In  that  case  the  lease  would  surely  convey 
an  estate  in  the  land  which  the  tenant  of  particular  rooms  had  not 
acquired.^** 

§  103.  A  description  of  a  house  by  the  street  number  in  a  demise 
carries  with  it  the  premises  of  which  the  building  which  is  strictly 
the  house  is  the  main  or  principal  feature.^'**  Only  so  much  of  the  lot 
upon  which  the  building  described  by  number  is  situated  passes  as 
is  necessary  for  the  complete  enjoyment  of  the  building  for  the  pur- 
pose for  which  it  was  let.  If  a  lease  does  not  in  terms  convey  any 
right  to  passageways,  to  lots  in  the  rear  of  the  buildings,  all  that 
can  be  claimed  is  that,  by  construction,  the  lease  conveys  so  much  of 
adjoining  premises  as  is  necessary  for  the  enjoyment  of  the  building 
for  the  purpose  for  which  it  is  rented.  Whether  passageways  or 
other  parts  of  the  lot  are  so  necessary  as  to  pass  is  a  question  of  fact 
for  the  jury.^*^  When  a  house  or  building  is  described  in  a  lease 
by  the  numbers  over  the  outside  doors  on  the  street,  the  inference  is 
that  a  building  is  intended  access  to  which  is  had  by  these  doors 
from  the  street.  A  part  of  the  building  inaccessible  by  this  entrance 
was  held  not  to  be  included  in  the  lease.  When  the  building  thus 
described  has  a  solid  brick  partition  wall  "extending  from  the  cellar 
to  the  roof,  without  door   passageway  or   other  opening  therein," 

^Seidel  v.  Bloeser,  77  Mo.  App.  E.   893,  affirming  70   111.  App.   349; 

172.  Houghton  v.  Moore,  141  Mass.  437, 

^'  Humiston   &c.    Co.   v.   Wheeler,  6  N.  E.  517. 

175  111.  514,  51  N.  E.  893,  affirming  ="  Patterson    v.    Graham,    40    111. 

70  111.  App.  349.  App.    399,   affirmed    140    111.    531,    30 

^"Armstrong  V.  Crilly,  51  111.  App.  N.  E.  460;    Hosher  v.  Hestermann, 

504,  affirmed  in  111.;   Humiston  &c.  58  111.  App.  265. 
Co.  V.  Wheeler,  175  111.  514,  51   N. 


§    104]  THE    INSTRUMEXT    OF    DEMISE.  138 

the  inference  is  unavoidable  that  it  was  so  constructed  that  the 
different  parts  of  the  building  might  be  separately  occupied.  Such 
a  partition  wall  makes  the  structure  two  tenements  for  the  purpose 
of  occupation  as  distinctly  as  if  they  had  not  been  built  as  parts  of 
one  block.  If  the  partition  wall  had  remained  intact,  the  lease 
could  not  be  construed  to  include  a  building  on  a  different  street 
inaccessible  from  the  street  mentioned  in  the  lease.  The  separate 
character  of  the  two  parts  above  the  first  story  was  not  changed 
although  the  partition  was  so  far  taken  down  in  the  first  story  as 
to  make  the  whole  floor  on  that  story  one  room.  As  regards  the  upper 
stories,  it  was  still  true  that  occupants  of  one  part  could  not  enter 
the  other  except  by  going  out  of  the  building  upon  the  street  and 
entering  through  outside  doors,  in  the  same  manner  as  the  public 
entered.^*® 

§  104.  Any  right  of  way  or  other  easement  necessary  to  the  en- 
joyment of  the  demised  premises  passes  as  appurtenant  thereto,  al- 
though not  expressly  mentioned  in  the  lease,  and  although  there  is 
no  express  mention  of  easements,  privileges,  or  appurtenances.^*^ 
Thus  a  lease  of  a  canal  constructed  by  a  hunting  and  boating  club 
was  held  to  pass  a  footpath  on  the  side  of  the  canal  which  was  used 
by  the  members  of  the  club.^*^  A  lease  of  "the  storeroom  in  its 
present  condition"  was  held  to  pass  a  backyard,  back  ways  and  out- 
houses used  in  connection  with  it.^'*''  And  it  was  held  that  a  demise 
of  a  "store"  included  the  land  under  it  and  to  the  middle  of  a  pri- 
vate way  in  the  rear,  the  fee  of  which  was  in  the  lessor.^  ^"^  But  in 
another  case  where  a  lease  of  a  building  did  not  in  terms  convey  a 
right  to  a  passageway  in  the  rear,  all  that  could  be  claimed  was  that 
the  lease  conveyed  so  much  of  the  lot  as  was  necessary  for  the  en- 
joyment of  the  building  for  the  purpose  for  which  it  was  rented.^^^ 

The  appurtenances  of  ingress  and  egress,  essential  to  use  and 
reasonably  within  the  contemplation  of  the  parties  at  the  time  of 
the  leasing,  are  as  much  a  part  of  the  room  conveyed  as  the  room 
itself.  In  other  words  when  a  person  leases  a  room  in  a  building 
with  doors  and  passageways  so  connected  with  other  rooms  as  to  be 

^"Houghton  v.   Moore,   141  Mass.  ^*Witte    v.    Quinn,    38    Mo.    App. 

437,  6  N.  E.  517.  681. 

^"  Oliver  v.   Dickinson,  100  Mass.  ''"  Hooper     v.     Farnsworth,     128 

114;    Pettingill    v.    Porter,    8    Allen  Mass.  487. 

(Mass.)   1;  Kent  v.  Waite,  10  Pick.  ^'^  Patterson   v.    Graham,    140    III. 

(Mass.)  138.  531,  30  N.  E.  460. 

^Alexander    v.    Tolleston    Club, 
110  111.  65. 


129  DESCRIPTION  OF  PRE:y:iSES.  [§  105 

essential  to  the  use  and  enjoyment  of  the  one  leased,  the  law  implies 
a  covenant  that  such  use  shall  not  be  interfered  with  during  the  con- 
tinuance of  such  term.^^^  When  a  person  hires  a  room  in  a  building, 
a  right  to  use  the  apparent  means  of  access  and  exit  often  passes  as 
appurtenant  to  the  premises  hired.  In  modern  buildings  of  great 
height  this  doctrine  may  be  applied  to  elevators.  "WHiether  an  active 
duty  to  maintain  an  elevator  can  be  implied  may  be  open  to  question, 
but  the  duty  to  permit  tenants  to  use  it  may  be  implied  if  this  is 
reasonably  necessary  for  the  beneficial  occupation  of  the  rooms  let,  and 
if,  from  the  construction  of  the  elevator  and  of  the  passageways  it 
is  apparent  that  the  elevator  was  intended  for  the  use  of  the  ten- 
ants.^^* 

In  construing  what  passes  as  appurtenances  in  a  lease,  the  situa- 
tion of  the  parties  at  the  time  of  making  the  lease  must  be  considered, 
and  where  the  lease  contained  an  agreement  to  give  plaintiff  one  half 
the  steam  power  and  to  keep  up  such  power  ten  hours  per  day,  it  was 
held  that  the  right  to  maintain  an  exhaust  pipe  to  plaintiff's  part  of  the 
premises  passed  as  an  appurtenance.^^'*  A  blast  used  in  a  blacksmith's 
shop  was  held  to  pass  as  an  appurtenance  to  "power"  which  was  to 
be  furnished  by  the  lessor  by  the  terms  of  the  lease.^^^ 

A  lease  of  a  loft  contained  the  memorandum,  "tenant  to  have  privi- 
lege of  storing  a  reasonable  number  of  cases  in  the  basement,"  and 
it  was  held  that  this  was  a  grant  of  the  privilege  in  premises  not  in- 
cluded in  the  lease.  This  right  could  be  waived  and  in  that  case 
failure  to  get  the  use  of  the  basement  could  not  be  set  up  as  a  de- 
fense in  an  action  of  rent.^^*^ 

§  105.  The  lease  of  property  abutting  on  a  public  street  carries 
with  it  all  the  easements,  incidents,  and  rights  of  the  owner  in 

such  street  belonging  to  such  property,  unless  especially  reserved  to 
the  lessor  in  the  lease.  The  tenant  acquires  all  rights  to  the  use 
of  the  street  in  front  of  the  leased  premises,  including  the  right 
to  air  and  light,  access,  ingress  and  egress,  incident  to  the  property, 
not  only  as  against  the  public  but  as  against  the  landlord.  He  be- 
comes entitled,  by  virtue  of  his  lease,  to  a  free  and  unobstructed 
street,  incumbered  only  with  the  easement  of  the  public  and  the 
privileges  of  the  municipality,  and  this  right  constitutes  a  part  of 
the  leased  premises.     The  tenant's  rights  in  this  respect  are  as  full 

^'^  Shaft  v.   Carey,   107   Wis.    273,  «"  Thomas  v.  Wiggers,  41  111.  470. 

277,  83  N.  W.  288.  '"  Thropp  v.  Field,  26  N.  J.  Eq.  82. 

*^Cummings  v.  Perry,  169  Mass.  =="  Cluett  v.  Sheppard,  131  111.  636, 

150,  47  N.  E.  618  23  N.  E.  589. 

Jones  L.  &  T.— 9 


§    lOG]  THE    IXSTKUMEXT    CT   DOUSE.  130 

and  complete  as  his  right  to  the  part  of  the  building  he  occupies, 
and  his  right  to  the  one  can  no  more  be  interfered  with  than  his 
right  to  the  other.^°^  Thus  in  a  case  where  premises  fronting  on  a 
river  were  leased  to  a  boating  club  for  a  boat  house  and  by  the  terms 
of  the  lease  the  lot  extended  to  the  channel  bank  of  the  river  and  in- 
cluded "all  and  singular  the  benefits,  liberties  and  privileges  to  the 
said  premises  belonging,"  the  water  way  was  a  material  portion  of 
the  leased  premises;  so  that  an  interference  by  the  landlord  with 
the  use  of  such  water  way  constituted  an  eviction  which  suspended 
rent.  The  right  to  enter  upon  the  land  leased  was  of  interest  or 
benefit  to  the  tenant  only  as  it  furnished  a  water  front  upon  which 
the  club  could  store  its  boats,  and  launch  and  land  the  same  unob- 
structed. The  disturbance  of  the  lessee's  beneficial  enjoyment  of 
the  water  front  amounted  to  an  actual  eviction.^"^ 

§  106.  A  tenant  could  prevent  an  interruption  of  his  right  to  an 
easement  for  light  and  air  by  the  threatened  erection  of  a  building 
in  the  yard  where  his  easement  extended,  by  a  decree  enjoining  such 
a  use  of  the  yard.  If  the  yard  had  not  been  part  of  the  lot  upon  which 
the  building  had  been  standing  and  if  it  had  not  been  appropriated 
for  use  with  the  building  so  as  to  pass  as  appurtenant  thereto,  and 
to  give  easements  therein  to  the  tenants,  they  could  not  have  com- 
plained of  the  new  building.  Under  the  authorities,  if  the  lessor  had 
sold  the  store  and  land  upon  which  it  stood,  the  grantee  would  have 
taken  no  right  to  light  and  air  from  the  balance  of  the  lot.  In  that 
case  the  grantor  could  have  built  upon  the  balance  of  the  lot,  and 
thus  have  darkened  the  windows  in  the  granted  building  without 
violating  any  rights  of  the  grantee.^^^  Yet  in  case  of  a  lease  failure 
to  give  tenants  access  to  a  yard  does  not  indicate  that  they  were  to 
be  deprived  of  the  light  and  air  from  the  yard.  Windows  facing 
such  a  yard  are  in  many  instances  the  only  means  to  procure  light 
for  the  proper  transaction  of  business  in  the  demised  premises.  The 
light  passing  into  the  windows  from  the  yard  is  then  essential  to  the 

^'Edmison  v.  Lowry,  3  S.  Dak.  ^^^  Parker  v.  Foote,  19  Wend.  (N. 
77,  52  N.  W.  583,  17  L.  R.  A.  275,  44  Y.)  309,  315;  Palmer  v.  Wetmore,  2 
Am.  St.  774.  See  also,  Newman  v.  Sandf.  (N.  Y.)  316;  Myers  v.  Gem- 
Metropolitan  El.  R.  Co.,  10  N.  Y.  St.  mel,  10  Barb.  (N.  Y.)  537;  Mullen 
12.  v.  Strieker,  19  Ohio  St.  135;  Haver- 

^«Pridgeon     v.      Excelsior     Boat  stick  v.  Sipe,  33  Pa.  St.  368;   Keats 

Club,   66   Mich.   326,   33    N.   W.   502.  v.  Hugo,  115  Mass.  204. 
See    also,    Cochran    v.    Ocean    Dry- 
Dock  Co.,  30  La.  Ann.  1365. 


131  DESCEIPTIOX    OF    TREMISES.  [§    107 

beneficial  use  of  tlie  store,  and  it  would  clearly  be  the  intention  at 
the  time  the  lease  is  made  that  the  tenants  should  have  it.  To  this 
extent  the  tenants  will  be  entitled  to  enjoy  an  easement  in  the  yard. 
They  will  be  so  far  interested  in  it  that  the  landlord  cannot  change 
its  condition  to  their  detriment. ^'^^ 

§  107.  What  constitutes  the  curtilage. — By  the  "curtilage" 
which  passes  with  the  demise  of  a  house  is  meant  the  court  yard  in 
the  front  or  rear,  or  at  its  side,  or  any  piece  of  ground  lying  near, 
inclosed  and  used  with  the  house,  and  necessary  for  its  convenient 
occupation. ^"^  A  strip  of  land  belonging  to  the  lessor  which  had 
been  fenced  off  as  a  separate  lot  was  held  not  to  pass  as  parcel  of  the 
premises  belonging  to  a  house  although  it  had  been  formerly  treated 
as  such.^*^-  Yet  the  general  rule  of  law  is  that  where  a  house  or 
store  is  conveyed,  everything  then  belonging  to  or  in  use  for  the  house 
or  store  passes  by  the  grant.  It  is  implied  from  the  nature  of  the 
grant  that  the  grantee  shall  possess  the  house  in  the  manner  and 
with  the  same  beneficial  rights  as  were  then  in  and  belonged  to  it.^®^ 
The  yard  would  pass, -not  by  force  of  the  word  "appurtenances,"  but 
as  portion  of  the  premises  demised.^'''*  An  adjoining  piece  of  land 
lying  on  a  separate  lot  was  held  not  to  pass  under  the  description  all 
the  "buildings,  outhouses  and  premises  of  said  place  with  the  ap- 
purtenances." The  land  in  question  had  no  outhouses  or  other 
buildings  upon  it.  The  outhouses  and  erections  were  on  the  other 
side  of  the  lot  designated  by  number.  By  construction,  the  words 
"buildings,  outhouses  and  premises  of  said  place"  would  embrace  the 
lot  on  the  west  side.  Such  a  construction  was  necessary  to  give 
effect  to  the  description  of  the  property  as  demised  in  the  lease.  But 
there  was  nothing  in  the  lease  to  make  the  description  apply  to  the 
strip  on  the  east  side.^"^ 

No  title  in  a  separate  out-building,  yard  and  passageway  passed 
as  parcel  of  premises  described  as  a  "wooden  building"  when  they 
were  not    within    a    curtilage    or    inclosure    adjoining    the    wooden 

'«<•  Doyle  v.  Lord,  64  N.  Y.  432.  (U.  S.)  280,  29  Fed.  Cas.  No.  17595; 

^*i  People  v.  Gedney,  10  Hun    (N.  Comyn's    Dig.    Title,    Grant,    E.    6; 

Y.)  151.  Ship.  Touch  94. 

""McBurney  v.   Mclntyre,  38   Ga.  =""*  Riddle  v.   Littlefield,   53   N.   H. 

261.  503,  16  Am.  R.  388;   Doyle  v.  Lord, 

•"'United    States    v.    Appleton,    1  64  N.  Y.  432. 

Sumn.  (U.  S.)  492,  24  Fed.  Cas.  No.  ="'^  Morris  v.  Kettle,  57  N.  J.  Law 

14463;    Whitney  v.   Olney,  3   Mason  218,  30  Atl.  879,  s.  c.  34  Atl.  376. 


§    108]  THE    TNSTRUMEXT    OF    DEMISE.  133 

building  and  distinct  from  other  premises ;  nor  as  appurtenant  to  the 
premises  granted  because  land  will  not  pass  as  appurtenant  to  land.^"^^ 

§  108.  Use  of  outside  walls  for  signs. — It  may  be  laid  down  as  a 
general  rule  that  a  tenant  of  business  property  is  entitled  to  use  for 
his  business  signs  the  outside  of  the  part  of  the  building  occupied 
by  him.^*'^  Though  only  one  story  of  the  building  be  included  in  the 
demise,  the  outside  wall  of  the  part  leased  passes  by  the  lease  or  deed 
as  much  as  the  inside  of  the  same  wall.^*^^  The  outside  wall  of  a  store 
or  house  is  essential  for  the  proper  enjoyment  of  the  interior  of  the 
building.  The  outer  side  of  the  wall  is  but  one  side  of  the  same 
wall  that  has  an  inner  side,  and  the  removal  of  the  wall  removes 
both  sides.  Who,  then,  shall  occupy  the  exterior  walls  of  the  de- 
mised building?  The  landlord,  who  for  a  sufficient  consideration 
has  parted  with  the  possession  and  use  of  the  property?  or  the 
tenant,  who  cannot  have  the  full  and  complete  as  well  as  the  rea- 
sonably beneficial  enjoyment  of  the  property  for  which  he  pays  rent, 
without  the  opportunity  to  display  his  wares  and  his  advertisements 
upon  the  external  walls  of  the  building?  The  lessee  who  affixes  his 
signs  and  advertisements  upon  the  walls,  or  thereupon  suspends  his 
wares,  does  so  in  order  to  attract  custom  and  thereby  increase  the 
profit  derived  from  the  use  of  the  demised  premises.  The  outer  wall 
is  therefore  to  him  a  source  of  legitimate  profit.  If  the  lessee  deems 
it  more  advantageous  to  employ  the  walls  for  advertising  the  goods 
or  the  business  of  others,  receiving  payment  therefor,  than  to  ad- 
vertise or  expose  his  own  goods  upon  the  wall,  it  is  none  of  the  land- 
lord's business,  unless  he  has  restricted  or  forbidden  such  use  of  the 
premises. ^'^^  The  words  "first  floor"  in  a  building  are  equivalent  to 
"first  story"  of  the  building,  and  naturally  include  the  walls.  The 
apparent  intention  is  to  separate  a  section  of  the  building  as  a  dis- 
tinct tenement.  The  words  "first  floor"  define  the  lower  and  upper 
boundaries  of  this,  but  there  is  nothing  to  fix  the  lateral  boundaries 
except  the  boundaries  of  the  building.    In  this  respect  the  words  differ 

^"^  Oliver  v.  Dickinson,   100   Mass.  145  Mass.  1,  12  N.  E.  401,  1  Am.  St. 

114;    Leonard  v.  White,  7  Mass.  6;  422. 

Ammidoun  v.  Ball,  8  Allen   (Mass.)  ^"^  Lowell  v.  Strahan,  145  Mass.  1, 

293.  12  N.  E.  401,  1  Am.  St.  422;  Riddle 

'•"Law  v.  Haley,   9  Ohio   Dec.  R.  v.  Littlefield,  53  N.  H.  503,  16  Am. 

785,  17  Wkly.  L.  Bui.  242;   Baldwin  R.  388. 

V.    Morgan,    43    Hun    (N.    Y.)    355;  ^-^ Riddle   v.    Littlefield,   53   N.   H. 

Riddle  v.  Littlefield,  53  N.   H.   503,  503,  16  Am.  R.  388. 
16  Am.  R.  388;   Lowell  v.  Strahan. 


133  DESCRIPTION   or  PREMISES.  [§    108 

somewhat  from  the  word  "room."  The  word  "room"  includes  a  de- 
scription of  the  perpendicular  as  well  as  the  horizontal  planes  which 
bound  the  parcel  of  the  house  described  by  it  and  excludes  the  outside 
of  lateral  walls,  at  least  when  they  constitute  the  walls  of  another 
room,  as  clearly  as  the  words  "first  floor"  exclude  the  flooring  of  the 
story  above  it.  When  the  building  adjoins  the  side-walk  the  words 
"first  floor  in  building"  must  be  held  to  include  the  entire  front  wall 
of  that  part  of  the  building,  unless  there  is  something  to  control  the 
natural  meaning  of  the  language. ^^^  However,  where  the  general 
granting  words  of  the  lease  do  not  include  outside  walls,  an  express 
provision  authorizing  the  placing  of  signs  would  take  effect  as  a  license 
and  must  be  exercised  with  regard  to  existing  conditions  as  to  other 
signs  already  occupying  the  wall.^^^  In  a  slightly  different  case  the 
facts  were  that  certain  premises  contained  an  auditorium  and  certain 
one-story  houses.  The  owner  of  land  leased  the  auditorium  to  B.  and 
the  houses  also  situated  thereon  to  G.  The  landlord  then  leased  the 
space  above  the  one-story  buildings  to  B.  to  be  used  for  advertising 
purposes.  It  was  held  that  the  landlord  had  a  perfect  right  to  do  what 
he  wanted  with  the  space  above  the  roof  of  the  one-story  building, 
and  an  injunction  should  be  granted  to  protect  B.'s  rights.^^^ 

The  right  to  the  use  of  outside  walls  is  one  of  which  equity  takes 
cognizance  to  enforce  by  injunction  and  where  a  lease  does  not  pre- 
clude the  painting  of  pictures  on  outside  walls  to  advertise  a  business, 
the  lessee  may  have  the  lessor  enjoined  from  interfering  with  such 
form  of  advertising.^^^  However,  where  the  sign  space,  to  which  sev- 
eral tenants  have  the  right  for  their  business  purposes,  is  properly 
and  reasonably  used  by  some  of  them  to  the  exclusion  of  the  re- 
mainder, the  former,  having  prior  possession,  will  not  be  enjoined 
from  such  exclusive  use  at  the  suit  of  the  latter.^^*  A  lease  of  rear 
offices  containing  no  privileges  or  directions  as  to  the  lessee's  right 
to  place  signs,  gives  the  lessee  no  right,  as  against  other  lessees,  to 
place  his  sign  in  a  particular  locality  arbitrarily  chosen  by  him.  A 
court  of  equity  will  not  interfere  by  injunction  until  the  means  for 
an  amicable  settlement  with  the  other  tenants  have  been  exhausted.^^^ 
A  new  tenant  would  not  be  prevented  from  putting  his  sign  on  the 
balcony  of  the  second  floor  when  the  lessee  of  that  floor  led  him  to 

"*  Lowell  V.  Strahan,  145  Mass.  1,  "^Baldwin  v.  Morgan,  43  Hun  (N. 
12  N.  E.  401,  1  Am.  St.  422.  Y.)    355. 

"'  Pevey  v.  Skinner,  116  Mass.  129.         "'"  Law  v.   Haley,  9  Ohio  Dec.  R. 

"=  Booth   v.   Gaither,   58   111.   App.     785,  17  Wkly.  L.  Bui.  242. 
263.  ='=  Knoeppel    v.    Kings   County   F. 

Ins.  Co.,  48  How.  Pr.  (N.  Y.)  208, 


§§    109,    110]  THE   INSTRUMENT    OF    DEMISE,  134 

believe  before  he  took  the  lease  that  no  objection  would  be  made, 
such  right  being  conferred  as  against  the  lessor  by  a  clause  in  the 
lease.^"^ 

§  109.  Riparian  boundaries. — The  general  rule  is  that  a  riparian 
owner  holds  title  to  the  middle  of  a  navigable  stream  subject  to  the 
right  of  navigation  resting  in  the  public.  So,  where  an  owner  of  prem- 
ises fronting  on  a  river  leases  the  property,  the  lessee  will  take  to  the 
center  thread  of  the  stream,  unless  there  is  something  in  the  instru- 
ment showing  a  different  intention  of  the  parties.  That  is  the  legal 
effect  of  the  conveyance  and  it  cannot  be  varied  or  controlled  by 
parol  testimony .^^'^  According  to  these  principles  a  lease  of  a  tract 
of  land  bordering  on  a  stream,  would  include  half  the  bed  of  the 
stream  and  give  the  lessee  whatever  rights  the  lessor  has  to  cut  and 
remove  ice.^^®  So,  a  lease  of  certain  land  covered  by  a  pond  conveys 
as  incident  the  water  and  the  fish  in  the  pond,^^^  and  tide  and  shore 
lands  extending  from  a  certain  lot  to  deep  water  will  pass  under  a 
lease  of  the  lot  as  an  appurtenance  thereto.^**'  A  lessee  of  land 
bordering  on  a  stream  is  entitled  to  the  accretions  thereto  caused  by 
the  receding  of  the  stream  or  a  change  in  its  current,  during  his 
term,  even  though  the  bank  of  the  stream  is  named  as  a  boundary  of 
the  demised  premises.  Such  accretions  will  attach  to  and  form  a  part 
of  the  grant,  the  same  as  under  a  deed  of  conveyance.  The  accre- 
tions are  a  part  and  parcel  of  the  property,  and  no  reason  is  perceived 
why  they  should  not  pass  under  a  lease  as  well  as  under  a  deed.^^^ 

WTiere  there  was  a  lease  "of  the  east  one-half  of  the  north  one-half" 
of  a  forty-acre  tract  which  was  bounded  diagonally  by  a  lake,  it  was 
held  this  meant  one-half  the  actual  acreage  and  not  one-fourth  of  the 
rectangular  lot.^**- 

§  110.  The  reservation  to  lessor  of  a  right  to  select  a  portion  of  the 
leased  premises  and  retain  them  for  his  own  use  has  the  effect  of  a 
condition  subsequent;  and  until  the  option  is  exercised  the  whole  be- 

""^  Snyder  V.  Her  sberg,  33  Leg.  Int.  "'Smith  v.   Miller,   5   Mason    (U. 

(Pa.)  158.  S.)    191   22  Fed.  Cas.  No.  13080. 

'"'  Tyler  v.   Williamson,   4   Mason  ^*  Brown    v.    Carkeek,    14    Wash. 

(U.  S.)  397,  24  Fed.  Cas.  No.  14312;  443,  44  Pac.  887. 

Hooker  v.  Cummings,  20  Johns.  (N.  '"Cobb  v.  Lavalle,  89  111.  331,  31 

Y.)  91;  Claremont  v.  Carleton,  2  N.  Am.   R.  91;    Rutz  v.   Kehn,  143   111. 

H.  369;   Ballance  v.  City  of  Peoria,  558,  29   N.  E.   553.     See  also,  Lom- 

180  111.  29,  54  N.  E.  428,  reversing  bard  v.  Kinzie,  73  111.  446. 

70  111.  App.  546.  '"Hartford  &c.  Min.  Co.  v.  Cam- 
s'' Marsh  v.  McNider,  88  Iowa  390,  bria  Min.  Co.,  80  Mich.  491,  45  N. 

55  N.  W.  469,  45  Am.  St.  240,  21  L.  W.  351. 

R.  A.  333. 


i 


135  DESCRIPTION    CF    PIJEIMISES.  [§    110. 

longs  to  the  lessees.^®^  But  an  ordinary  exception  or  reservation,  if 
definite  and  valid,  prevents  the  title  from  ever  passing  out  of  the 
grantor  or  lessor.^^*  Where  a  definite  general  description  has  been 
given,  and  is  followed  by  a  loose  and  indefinite  exception,  such  as 
'^eing  the  farm  on  which  I  live,"  it  hardly  seems  possible  that  the 
parties  intended  to  create  an  exception  by  so  unsatisfactory  an  expres- 
sion. It  is  not  to  be  regarded  as  qualifying  and  restricting  the  definite 
grant,  but  as  a  matter  merely  of  further  description,  introduced  for 
the  purpose  of  further  particularity  which  can  be  rejected  when 
found  inconsistent  with  what  preceded. ^^'^  If  an  intended  exception 
is  not  expressed  in  the  contract  and  is  not  agreed  to  by  the  lessee,  it 
will  not  be  effective  to  curtail  the  grant.^'^*^  The  clause  "which  were 
lately  in  the  occupation  of  A.  B."  following  a  general  description  is  a 
restriction  only  where  the  preceding  clause  is  general  and  all  form 
but  one  and  the  same  sentence,  and  the  description  is  not  ended  as 
certain  till  the  end  of  the  sentence.  Whether  such  language  is  to  be 
construed  as  restrictive  of  what  has  preceded,  depends  more  upon  the 
connection  and  manner  in  which  it  is  used,  than  upon  the  exact 
language.  The  expression  "premises"  is  general  and  applies  alike  to 
a  manor,  a  farm,  a  building  or  a  tenement.  After  such  a  word  the 
phrase  "recently  occupied  by  so  and  so"  closely  following  is  not  re- 
pugnant to  what  has  preceded,  but  gives  definiteness  and  set  limits 
to  what  has  before  been  indefinitely  and  generally  described  as  "the 
premises."^*^  When  following  a  definite  description,  or  when  repug- 
nant to  a  preceding  description,  or  when  manifestly  added  by  way  of 
further  description,  different  rules  of  construction,  and  different  con- 
siderations control  the  effect  to  be  given  the  phrase.^^^ 

A  lease  of  land,  if  no  reservation  is  made,  includes  the  improvements 
or  buildings  on  the  premises  leased.^^^  The  general  principle  that  a 
lease  of  land  carries  with  it  the  mines  upon  the  land  applies  only 
where  the  contract  relates  to  the  land  generally  without  exception 
or  reservation.^®" 

^'' Garcia  v.  Gunn,  119  Cal.  315,  51  ^''Boe  v.   Burt,   1   Term  R.   701; 

Pac.  684.  Sargent  v.  Adams,  3  Gray   (Mass.) 

==«*  Spillman  v.  Brown,  45  Fed.  291;  72;  Mitchell  v.  Stevens,  1  Ark.  (Vt.) 

Munn  V.  Worrall,  53  N.  Y.  44;  Low  16;    Putnam   v.    Smith,    4   Vt.    622; 

v.  Settle,  32  W.  Va.  600,  9  S.  E.  922.  Hibbard  v.  Hurlburt,  10  Vt.  173. 

^=  Hibbard  v.  Hurlburt,  10  Vt.  173.  "'*  St.  Louis  Pub.  Schools  v.  Hol- 

^"Grauel  v.  Soeller,  52  Hun    (N.  lingsworth,  34  Mo.  191. 

Y.)  375,  24  N.  Y.  St.  278,  5  N.  Y.  254.  '»» Shaw  v.  Wallace,  25  N.  J.  Law 

'"Alger  V.   Kennedy,   49   Vt.   109,  453;  citing  Keyse  v.  Powell,  2  E.  & 

24  Am.  R.  117;  Swyft  v.  Eyres,  Cro.  B.  132,  75  E.  C.  L.  132. 
Car.  548. 


§    111]  THE   INSTRUMENT   OF   DEMISE.  136 

Where  certain  lots  were  definitely  and  unconditionally  excepted 
from  a  lease  of  a  larger  parcel  of  ground,  such  lots  did  not  pass  to 
the  lessee  even  though  the  reason  assigned  for  excepting  them  was  that 
they  were  subject  to  outstanding  leases,  which  was  not  true,  because 
these  leases  were  not  in  writing  and  consequently  void  by  the  statute 
of  frauds.^^^ 

V.    Duration  of  Term. 

§  111.  Leases  may  at  law  be  for  years,  for  life  or  of  perpetual 
duration.  Indeed,  they  may  be  made  for  any  period  which  will  not 
exceed  the  interest  of  the  grantor  in  the  premises.^^^  Thus,  a  demise 
to  a  person,  his  heirs  and  assigns,  for  such  term  of  time  as  he  pays 
rent,  he  on  his  part  covenanting  for  himself  and  his  heirs  to  pay  rent 
and  perform  covenants,  is  a  perpetual  lease.^^^  A  lease,  no  matter 
how  long,  does  not  offend  the  rule  against  perpetuities  because  it 
does  not  suspend  the  power  of  alienation.  The  concurrent  action  of 
lessee  and  lessor  can  always  pass  a  clear  estate  and  discharge  any 
burdens  or  conditions  created  by  the  lease.^®*  Nor  is  a  lease  for  a 
term  of  years  to  commence  in  the  future,  however  remote,  objection- 
able on  this  score.  The  free  and  active  circulation  of  property  is  not 
in  any  way  impeded  by  such  a  disposition  as  that.  But  an  agree- 
ment to  grant  a  lease  for  life  at  a  time  more  than  twenty-one  years 
in  the  future  is  bad  because  the  quantum  of  the  interest  cannot  be 
determined  within  the  prescribed  time,  and  so  the  lease  could  not  vest 
within  that  time.  Such  an  agreement  would  not  be  made  good  by  a 
covenant  for  perpetual  renewal.^"^ 

In  Alabama  it  is  provided  by  statute  that  leases  shall  not  be  made 
for  a  longer  period  than  twenty  years.^^'^  The  construction  placed 
upon  this  act  is  that  a  lease,  though  for  a  term  exceeding  the  prescribed 
limit,  will  stand  good  for  the  term  authorized  by  the  statute.  The 
statute  draws  the  boundary  line,  separating  the  legal  from  the  illegal 

^"Hargrove    v.    Miller,    Busb.    L.  '»* Toms  v.  Williams,  41  Mich.  552, 

(N.  Car.)  68.  2  N.  W.  814;   Gomez  v.  Gomez,   81 

'^^  Warner  v.  Tanner,  38  Ohio  St.  Hun   (N.  Y.)   566,  31  N.  Y.  S.  206; 

118;  Folts  v.  Huntley,  7  Wend.   (N.  Henderson   v.   Virden   Coal   Co.,   78 

Y.)     210;     Theobalds    v.    Duffoy,    9  111.  App.  437;  Richmond,  City  of,  v. 

Mod.  102;  Denn  v.  Barnard,  2  Cowp.  Davis,  103  Ind.  449. 

595.  3"=  Redington  v.  Browne,  32  L.  R. 

^ Folts  V.  Huntley,  7  Wend.   (N.  Ir.  347. 

Y.)  210.  ssoCode  of  1886,  §  1836. 


137  DURATION  OF  TERM.  [§  113 

parts  and  leaves  it  to  stand  good  for  the  term  for  which  the  lessor 
had  authority  to  create  the  leasehold  estate.^'''^ 

In  New  York  leases  of  agricultural  lands  for  a  longer  period  than 
twelve  years  are  prohibited  by  a  constitutional  provision.  The  char- 
acter of  the  land  and  not  the  purpose  for  which  it  is  leased  is  made 
the  test  of  the  validity  of  the  lease.^®^  A  lease  for  life  is  valid  for 
twelve  years  after  which  it  would  terminate  by  operation  of  law.^®* 
A  covenant  for  renewal  extending  the  term  for  a  greater  period  than 
twelve  years  is  bad,  but  the  lease  is  good  for  the  first  term.*°*^  So 
two  leases  executed  at  the  same  time  and  as  part  of  the  same  transac- 
tion which  create  a  term  for  more  than  twelve  years  violate  the  con- 
stitutional provision.*"^ 

Where  there  is  nothing  in  the  contract  requiring  the  personal  pres- 
ence of  the  lessee,  a  lease  for  years  is  not  terminated  by  his  death,*"^ 
nor  would  such  a  lease  be  terminated  by  the  death  of  the  lessor.**^^ 

§  112.  The  term  for  which  a  lease  for  years  is  to  run  should  be 
certain,  with  a  definite  time  for  commencement  and  for  termination. 
For  the  sake  of  the  validity  of  the  instrument  the  duration  of  a  lease 
must  be  certain;  this  includes  both  its  commencement  and  termina- 
tion. Unless  these  requirements  are  complied  with,  an  estate  at  will 
only  is  created.*"*  A  long  settled  rule  makes  it  essential  to  the  valid- 
ity of  a  lease  that  it  be  for  a  definite  period,  either  expressly  fixed  or 
capable  of  being  fixed  by  computation.  Thus  a  lease  of  premises  so 
long  as  the  buildings  should  be  used  for  a  certain  business  was  held  not 
to  create  a  term  for  years  because  it  lacked  a  definite  term.'**'^ 
A    lease    for     so     long     as    both    parties     shall     please,     or     for 

^»' Robertson  v.  Hayes,  83  Ala.  290,  Pick.    (Mass.)    260,    271;    Collier   v. 

3   So.   674;    Trammell  v.   Chambers  Hyatt,   110   Ga.   317,  35   S.   E.    271; 

Co.,  93  Ala.  388,  9  So.  815.  Corby  v.   McSpadden,   63   Mo.   App. 

'""  Odell  v.  Durant,  62  N.  Y.  524.  648;     McClain    v.    Abshire,    72    Mo. 

^'' Parish  V.  Rogers,  20  N.  Y.  App.  App.   390;    Reed   v.   Lewis,   74   Ind. 

Div.  279.  433,  39  Am.  R.  88;  Western  Transp. 

*'"Hart  V.  Hart,  22  Barb.   (N.  Y.)  Co.  v.  Lansing,  49  N.  Y.  499;  Lloyd 

606.  V.  Cozens,  2  Ashm.   (Pa.)   131;   Lea 

^"  Clark  V.  Barnes,  76  N.  Y.  301,  v.  Hernandez,  10  Tex.  137;    United 

32  Am.  R.  306.  States  v.   Gratiot,   14   Pet.    (U.   S.) 

^'Alsup  v.  Banks,  68  Miss.  664,  9  526;  Bishop  of  Bath's  Case,  6  Coke 

So.  895.  35. 

*^  Jaques      v.      Gould,      4      Cush,         ^'"  Melhop    v.    Meinhart,    70    Iowa 

(Mass.)  384.  685,  28  N.  W.  545.    See  also,  Cheever 

^1   Shep.   Touch   272;    Co.    Litt.  v.   Pearson,   16   Pick.    (Mass.)    260, 

45b;     Murray    v.    Cherrington,     99  266. 
Mass.  229;   Cheever  v.  Pearson,  16 


§    113]  THE    INSTr.rilEXT    OF   DEMISE.  138 

SO  long  as  the  lessee  shall  please,  is  said  to  be  a  lease  at  the  will 
of  both  lessor  and  lessee.  It  is  at  most  a  tenancy  from  year  to  year,  so 
long  as  both  parties  please.*"^  And  a  lease  to  continue  until  the  party 
of  the  second  part  is  prepared  to  improve  the  ground  with  new  build- 
ings was  held  to  be  for  so  indefinite  a  period  that  it  constituted  a  mere 
tenancy  at  will.  Its  duration  was  uncertain,  since  it  could  not  be 
known  when  the  lessor  would  be  prepared  to  improve  the  property 
with  new  buildings.*"'^  A  license  given  by  a  school  district  to  three 
parties  to  erect  a  second  story  over  a  school  house,  and  followed  by  a 
lease  to  them  for  so  long  as  the  building  should  stand,  could  not  take 
effect  as  a  lease  for  years  because  it  was  for  no  specified  term;  and  it 
could  not  be  more  than  a  life  estate  because  there  were  no  words  of 
inheritance.  So  the  proper  construction  was  that  the  licensee  owned 
the  second  story  all  the  time.  There  had  been  in  fact  no  lease  at  all.*°^ 
The  duration  of  a  valid  term  may,  however,  be  determined  by  some- 
thing ex  post  facto  referred  to  in  the  lease,  provided  the  matter  occur 
in  the  lifetime  of  both  lessor  and  lessee."**'''  The  latter  requirement  is 
because  no  interest  passes  out  of  the  lessor  during  his  lifetime,  and 
after  his  death  the  naming  of  the  years  will  come  too  late.  Thus  it  is 
said  in  an  ancient  case  •^'^^  *'If  I  make  a  lease  for  years,  for  so  many 
years  as  I.  S.  shall  name,  and  afterwards  I.  S.,  in  my  lifetime,  names 
a  certain  number  of  years,  it  shall  be  a  good  lease  for  so  many  years  as 
he  names,  for  it  is  my  demise  and  I  am  content  that  he  should  name 
the  years,  which  by  my  own  reference  to  his  nomination,  is  as  much 
as  if  I  myself  had  named  them.  This  instance  is  put  in  illustration 
of  the  general  principle,  that  every  contract  sufficient  to  make  a  lease 
for  years  ought  to  have  certainty  in  three  limitations,  viz.:  in  the 
commencement  of  the  term,  in  the  continuance  of  it,  and  in  the  end 
of  it.  So  all  these  ought  to  be  known  at  the  commencement  of  the 
lease;  but  it  is  a  sufficient  compliance  with  this  requirement  that  the 
duration  of  the  term  may  be  made  certain."  For  a  lease  may  be  good 
although  its  duration  must  be  settled  by  something  dehors  the  lease 
itself.  Thus,  where  a  tenant  erected  improvements  during  the  term 
and  the  lessor  covenanted  to  allow  him  to  continue  to  occupy  until 
they  were  paid  for  out  of  the  rents  and  profits,  a  valid  term  for  years 
was  created.*^^    A  lease  for  such  time  as  lessee  shall  continue  to  be 

*«°Doe   V.   Richards,    4    Ind.    374;  Coke  153;    Say  v.  Smith,  1  Plowd. 

Bacon  Abr.  Lease,  L.  3.  269;    Western   Transp.   Co.   v.   Lan- 

^o'  Corby    v.    McSpadden,    63    Mo.  sing,  49  N.  Y.  499. 

App.  648.  ""  Say  v.  Smith,  1  Plowd.  269. 

^"s  Peaks  V.  Blethen,  77  Me.  510.  "'  Batchelder  v.    Dean,   16   N.   H. 

**°  Rector  of  Chedington's  Case,  1  265. 


139  DURATION    OF   TERM.  [§§    113,    11-1 

postmaster  was  construed  to  mean  for  the  four  years  during  which 
his  commission  would  last  if  it  were  not  terminated  in  some  unex- 
pected way,  for  in  every  estate  for  years  the  term  must  be  certain.*^^ 

§  113.  Leases  running  from  an  indefinite  future  time. — If  a  lease 
has  a  certain  appointment  of  the  number  of  years,  although  the  com- 
mencement or  the  end  of  it  is  certainly  appointed  upon  an  uncertain 
time,  yet  such  lease  shall  be  good  as  a  lease  for  years.  Wlien  a  lease 
is  to  run  for  a  certain  term  of  years,  it  is  not  rendered  invalid  by 
the  circumstance  that  it  is  to  begin  upon  the  completion  of  an  un- 
finished building.  It  has  been  conceded  that  a  lease  for  years  may 
begin  when  a  home  is  suitable  to  be  occupied  according  to  the  maxim. 
Id  certum  est  quod  cerium  reddi  potest. '^'^^ 

The  circumstance  that  the  term  does  not  take  effect  at  once,  but  is 
postponed  till  a  future  date,  is  no  objection,  because  it  is  a  familiar 
doctrine  that  a  lease  for  years  may  commence  in  futuro,  as  being  an 
estate  which  could,  even  in  ancient  times,  be  created  without  livery 
of  seisin.^^*  Such  a  lease  is  a  valid  lease  in  praesenti  for  a  term  to 
commence  in  futuro,  and  the  necessary  element  of  certainty  in  the 
commencement  of  the  term  is  satisfied  by  the  completion  of  the 
building  as  prescribed.*^^ 

§  114.   A  contingent  limitation  of  a  term  is  valid  and  enforceable. 

A  lease  of  a  grist-mill  contained  an  agreement  that,  if  the  mill 
broke  down,  so  that  it  could  not  be  operated,  the  tenancy  should  ex- 
pire. This  provision  created  a  contingent  limitation,  and  when  the 
contingency  happened,  the  tenant  was  bound  to  take  notice  of  it  and 
surrender  the  possession.^^^  When  the  period  is  fixed  and  definite,  it 
does  not  invalidate  the  lease  that  it  may  come  to  an  earlier  termi- 
nation.    Whatever  the  term,  it  may  be  subject  to  a  condition  which 

*"Easton  V.  Mitchell,  21  111.  App.  Field  v.  Howell,  6  Ga.  423.     Under 

189.  sections  1044-1047  of  the  Civil  Code 

"'McClain    v.     Abshire,     72     Mo.  of  California  land  may  be  leased  to 

App.    390;    Noyes    v.    Longhead,    9  another   pending   its  possession   by 

Wash.  325,  37  Pac.  452;    Hammond  a   tenant   whose   term   has   not  ex- 

v.   Barton,   93   "Wis.    183,   67   N.   W.  pired.     A  lease  to  begin  in  future 

412;     Murray    v.     Cherrington,     99  is  valid.    Rice  v.  Whitmore,  74  Cal. 

Mass.  229.  619,  16  Pac.  501. 

^*  McClain  v.  Abshire,  72  Mo.  App.        *''•  Hammond   v.    Barton,    93    "Wis. 

390;    Batchelder  v.  Dean,  16  N.   H.  183,  67  N.  W.  412;  Colcough  v.  Car- 

265;    Noyes   v.   Loughead,   9   Wash,  peles,  89  Wis.  239,  61  N.  W.  836. 
325,  37  Pac.  452;  Hammond  v.  Bar-        ""Scott  v.   Willis,   122   Ind.   1,  22 

ton,   93    Wis.    183,    67    N.    W.    412;  N.  E.  786. 


§    114]  THE    INSTRUMENT    OF    DEMISE.  140 

is  a  qualification  annexed  to  the  estate  by  the  grantor*^''  or  the 
lessor/ ^^  whereby  the  estate  or  term  granted  may,  among  other  things, 
be  defeated  or  terminated.*^''  Unless  a  definite  time  is  set  for  its 
termination,  it  does  not  take  effect  as  a  term  for  years,  and  either 
party  would  be  able  to  put  an  end  to  the  holding,  although  the  condi- 
tion puts  it  in  the  control  of  one.  But  in  spite  of  the  fact  that  a 
tenancy  at  will  was  created  rather  than  a  term  for  years,  the  hap- 
pening of  the  contingency  would  still  be  effective  to  end  the  estate 
at  will.  So,  a  lease  of  premises  by  parol  till  they  should  be  sold  would 
be  terminated  on  a  sale  without  any  notice  to  quit.  The  agreement  to 
give  up  possession  on  a  sale  operated  as  a  contingent  limitation,  and 
when  the  contingency  happened  the  term  was  at  an  end.*^°  Such  a 
stipulation  in  a  lease  would  usually  contemplate  a  perfect  sale  by  deed 
which  would  pass  both  title  and  right  to  possession.  As  long  as  the 
landlord  had  the  right  of  possession,  the  tenant  could  occupy  the 
property.  Therefore,  a  contract  of  sale  which  did  not  deprive  the 
landlord  of  the  right  of  possession  and  did  not  disturb  the  tenant's 
right  to  the  occupancy  of  the  property  was  not  a  sale  contemplated  in 
the  lease.*^^  However,  it  is  not  competent  for  the  tenant  to  object 
that  the  contract  of  sale  was  not  evidenced  by  deed  conveying  a  per- 
fect title.  It  is  quite  immaterial  whether  the  agreement  for  a  sale 
was  such  as  could  be  coerced.  Objections  to  its  validity  concerned 
the  parties  themselves,  and  it  was  not  for  a  stranger  to  supervise 
their  contract.  The  event  on  which  the  right  of  the  tenant  to  occupy 
the  land  was  to  cease  did  actually  happen  as  soon  as  the  landlord 
sold  it  with  a  right  to  immediate  possession.*^^  jj^  qj^q  case  there  was 
a  lease  of  premises  for  five  years  if  not  sold,  reserving  annual  rent 
payable  semi-annually  and  providing  that  if  the  landlord  sold  within 
the  five  years,  he  should  pay  reasonable  damages  to  the  tenant.  This 
term  might  be  ended  in  two  modes,  either  by  sale  or  by  lapse  of  time, 
and  reasonable  damages  only  became  payable  in  case  the  tenancy  was 
terminated  before  the  crops  matured  in  a  single  season.^^^  Where 
there  was  a  lease  for  three  years  if  land  were  not  sold,  with  pro- 
vision that  if  it  was  not  sold  and  landlord  did  not  return  and  occupy 
it  himself,  the  said  lessee  was  to  continue  to  have  possession,  it  was 

*^'Sperry  v.  Pond,  5  Ohio  387,  24  Stewart  v.  Pier,  58  Iowa  15,  11  N. 

Am.  Dec.  296.  W.  711;  Dean  v.  Fail,  8  Port.  (Ala.) 

*"  Pelts  V.  Huntley,  7  Wend.    (N.  491. 

Y.)  210.  *"  Stewart  v.  Pier,  58  Iowa  15,  11 

*^»  Warner  v.  Tanner,  38  Ohio  St.  N.  W.  711. 

118.  *="Dean  v.  Fail,  8  Port.  (Ala.)  491. 

**>  Clark  V.  Rhoads,  79   Ind.   342;  *^  Taylor  v.  Frohock,  85  111.  584. 


141  DURATION  OF  TERM.  [§  115 

held  that  entry  by  the  landlord  would  terminate  it  just  the  same  as  a 
sale  of  the  land.*^*  But  in  the  case  of  a  lease  of  land  to  a  club  dur- 
ing the  existence  of  said  club,  the  lease  to  cease  whenever  said  club 
shall  cease  to  exist  as  now  organized,  it  was  held  the  incorporation 
of  the  club  did  not  put  an  end  to  the  lease.*^^ 

The  expression  "used  for  railroad  purposes"  in  a  lease  was  held  to 
mean  public  use  for  such  purposes.  Thus,  a  lease  to  a  railroad  was 
to  continue  as  long  as  the  land  demised  was  used  for  railroad  pur- 
poses. The  main  tracks  were  changed  and  this  line  was  sold  to  be 
used  for  a  private  siding.  The  court  decided  that  this  terminated  the 
lease.*^^ 

Where  lessor  reserved  right  to  sell  premises,  in  which  case  he  was 
to  purchase  improvements  from  the  tenant,  it  was  held  that  the 
tenant  could  not  be  forced  to  continue  as  tenant  of  the  vendee,  but 
could  insist  upon  a  purchase  of  the  improvements.*^^ 

§  115.  Happening  of  contingency. — When  the  act  which  termi- 
nates a  contingent  lease  is  done  by  the  lessee,  or  is  peculiarly  within 
the  knowledge  of  the  lessee,  the  mere  doing  of  the  act  does  not  neces- 
sarily bring  the  lease  to  an  end.  Thus  a  lease  of  a  saw-mill  was  to 
continue  until  certain  logs  had  been  sawed,  and  it  was  held  that  the 
mere  sawing  of  the  last  log  did  not  ipso  facto  terminate  the  lease  with- 
out notice  to  the  landlord  to  that  effect.  The  bare  statement  by  the  ten- 
ant that  he  had  ceased  sawing  and  had  discharged  his  mill  hands  and 
the  knowledge  of  these  facts  by  the  landlord  did  not  constitute  such 
notice.  The  tenant  had  a  right  to  retain  possession  till  he  had  re- 
moved his  lumber  and  a  duty  to  put  the  premises  in  proper  repair  be- 
fore he  asked  the  landlord  to  accept  possession.  If  the  tenant  had 
fully  performed  his  contract  and  then  abandoned  the  premises,  with 
the  knowledge  of  the  landlord,  there  would  be  force  in  the  contention 
that  the  lease  was  at  an  end  and  no  formal  surrender  necessary.  But 
the  premises  were  not  in  such  condition  that  the  landlord  could  be 
called  on  to  accept  possession.  It  followed  that  the  tenant  was  re- 
sponsible for  negligently  leaving  the  premises  without  a  watchman 
and  liable  for  damage  caused  by  a  fire  which  occurred  in  consequence 
of  such  neglect. ^^^ 

After  a  contingent  limitation,  as  distinguished  from  a  condition, 

*=*Lord  V.  Walker,  49  Mich.  606,  ^"Kugel  v.  Painter,  166  Pa.  St. 
14  N.  W.  564.  592,  31  Atl.  338. 

^^  Alexander    v.     Tolleston    Club,        *"  Morton  v.  Weir,  70  N.  Y.  247. 
110  111.  65.  ^Stevens   v.   Pantlind,   95   Mich. 

145,  54  N.  W.  716. 


§'    116]  THE   INSTRUMENT    OF    DEMISE.  142 

no  act  is  necessary  to  vest  the  right  in  him  who  has  the  next  expectant 
interest,  since  the  limitation  marks  the  period  which  is  to  determine 
the  estate,  without  entry  or  claim. *^^  A  provision  in  a  lease  that  the 
lessor  may  "terminate  the  lease  at  the  end  of  any  year  by  giving  sixty 
days'  previous  notice,  in  case  he  should  sell  or  desire  to  rebuild"  is 
not  a  condition  but  a  limitation  and  the  term  expires  by  force  of  the 
sale  and  notice,  in  sixty  days  thereafter,  without  any  further  act  on 
the  part  of  the  lessor.  Where  covenants  form  conditions  and  not  con- 
ditional limitations,  a  breach  of  them  does  not  ipso  facto  terminate 
the  lease.  If  broken,  the  lessor  may  thereupon  take  advantage  of  the 
breach  and  declare  the  lease  at  an  end.  The  lessor,  upon  breach,  is 
not  to  be  in  immediately  of  his  former  estate,  but  at  his  option,  the 
hiring  and  the  relation  of  landlord  and  tenant  are  to  cease  and  are  to 
continue  till  he  shall  otherwise  elect.*^"  If  a  grant  be  on  condition, 
only  the  grantor  or  his  representatives  could  avoid  the  estate  by 
entry,  and  so  a  remainder  man  might  be  defeated  by  their  failure  to 
enter,  but  when  it  is  a  limitation,  the  former  estate  determined  and  the 
remainder  man  may  enter  without  any  act,  such  as  entry  or  claim.*^^ 

A  lease  which  was  to  continue  during  "the  life  of  a  building"  was 
terminated  when  a  material  portion  of  the  building  was  destroyed  by 
fire.  The  question  before  the  court  was  as  to  the  interpretation  of 
the  phrase  "life  of  the  building."  It  decided  the  life  of  the  building 
was  terminated,  within  the  meaning  of  the  lease,  when  the  building 
had  been  injured  by  fire  or  other  causes  to  such  an  extent  as  substan- 
tially to  destroy  the  part  demised  and  to  render  it  impracticable  for 
the  lessees  to  perform  the  covenant  to  rebuild  such  part  except  by 
rebuilding  other  important  parts  of  the  building  not  covered  by  the 
lease.*^'' 

§  116.  Lease  for  life. — According  to  the  strict  rule  of  the  common 
law,  it  was  necessary  that  the  word  'Tieirs"  be  used  in  a  grant  of  real 
estate  in  order  to  create  an  estate  of  inheritance,  and  the  absence  of 
this  technical  word  prevented  the  grantee  from  taking  anything  more 
than  a  life  interest. *^^  Thus  a  lease  to  A,  his  executors,  administra- 
tors and  assigns  forever  was  a  lease  for  life  or  a  life  estate  only.*^* 
Where  a  lease  of  premises  was  made  to  a  minister  of  the  gospel  during 

"'Miller  v.   Levi,   44   N.   Y.    489;  *" Ainsworth  v.  Moriah  Lodge,  172 

Clark  v.  Rhoads,  79  Ind.  342.  Mass.  257,  52  N.  E.  81. 

""Benjamin  v.  Benjamin,  1  Seld.  «^  Jones  Real  Prop,  in  Conveyanc- 

(N.    Y.)     383;     Beach    v.    Nixon,    5  ing,  %  575,  et  seq. 

Seld.  (N.  Y.)  35.  "^Williams  v.  Woodard,  2  Wend. 

«i  Stearns  v.  Godfrey,  16  Me.  158.  (N.  Y.)  487. 


143  DURATION  OF  TERM.  [§  116 

his  natural  life,  for  his  use  and  improvement,  and  for  the  benefit  of 
the  ministry  during  his  successor's  good  pleasure,  the  leasehold 
estate  terminated  upon  the  death  of  the  original  lessee.  The  terms 
of  the  instrument  constituted  it  a  personal  lease  to  a  minister  desig- 
nated by  name  as  the  lessee  and  the  absence  of  the  word  "heirs" 
prevented  him  from  taking  an  estate  of  inheritance.*^^  In  another 
case  there  was  a  lease  of  premises  for  five  years  with  privilege  of 
purchasing  improvements  at  the  end  of  that  time.  If  the  lessor 
did  not  purchase,  the  lease  was  to  be  renewed  for  another  five-year 
term  and  so  on  indefinitely,  but  the  lease  in  terms  only  bound  ex- 
ecutors, administrators  and  assigns.  The  construction  put  upon  this 
instrument  was  that  it  was  only  intended  to  continue  during  the 
lives  of  the  parties,  for  the  law  did  not  favor  perpetual  leases,  and 
the  intention  to  create  one  must  appear  from  unequivocal  language 
and  would  not  be  left  to  inference.*^^  Formerly,  in  case  of  uncertain 
leases  made  until  such  a  thing  be  done  or  so  long  as  such  a  thing  shall 
continue,  if  livery  of  seizin  were  made  upon  them,  they  might  have 
been  good  leases  for  life,  determinable  upon  these  contingencies,  al- 
though not  good  leases  for  years.  But  where  by  statute  the  word 
"heirs"  is  not  necessary  to  create  a  fee,  it  would  seem  that  an  estate  in 
fee  was  created  by  such  a  lease,  subject  to  be  determined  by  the  hap- 
pening of  the  contingency.*^'^ 

When  a  lease  i-s  granted  for  a  term  of  several  lives,  the  construc- 
tion to  be  placed  upon  it  is  that  it  was  granted  for  the  term  of  the 
longest  of  the  lives  of  the  persons  named  therein.*^^  The  same  con- 
struction was  placed  upon  a  lease  to  two  persons  *^for  and  during  their 
natural  life."  The  court  said :  "The  lessees  are  two.  The  pronoun 
is  in  the  plural  and  must  include  both  of  them.  The  noun  life  is  in 
the  singular,  and  refers  to  the  life  of  one  as  much  as  to  the  other  and 
must  therefore  be  taken  separately  rather  than  Jointly.  If  the  lease 
is  to  terminate  upon  the  death  of  one  only,  the  full  meaning  of  the 
language  has  not  been  exhausted.  There  is  still  one  life  included  in 
the  word  'their'  which  has  not  ceased  and  it  must,  therefore,  follow 
that  the  lease  has  not  terminated."*^^  The  expression  "for  the  space 
of  twenty  years  or  during  our  natural  lives"  when  used  to  describe 
the  length  of  a  term  was  construed  to  give  an  estate  for  twenty  years 
provided  the  lessees  lived  so  long.    It  did  not  confer  any  rights  after 

^''Merwin  v.  Camp,  3  Conn.  35,  *"Reed  v.  Lewis,  74  Ind.  433;  cit- 
43;  Co.  Litt.  62b.  ing  Co.  Litt.  45b,  n.  2. 

""  Brush    V.    Beecher,    110    Mich.        «« Flagg  v.  Badger,  58  Me.  258. 
597,  68  N.  W.  420.  "^Kenney   v.    Wentworth,   77    Me. 

203,  205,  per  Danforth,  J. 


§§    117,    118]  THE   INSTRUMENT    OF    DEMISE.  144 

the  expiration  of  the  twenty  years,  and  if  the  lessees  should  die  be- 
fore the  end  of  the  twenty  years  the  lease  would  expire  sooner.**" 

In  the  absence  of  any  growing  crop  upon  the  leased  premises,  the 
general  rule  seems  to  be  that  upon  the  death  of  a  tenant  for  life,  all 
his  interest  and  all  the  interest  of  his  lessee  ceases.**^ 

§  117.  Errors  in  calculation. — Inaccuracy  of  language  which  re- 
sults from  inserting  a  word  not  meant,  or  using  the  wrong  word,  will 
not  be  permitted  to  defeat  the  intention  of  the  parties,  when  such  in- 
tention can  be  distinctly  ascertained  from  other  portions  of  the  written 
instrument.  This  general  principle  is  applied  to  leases  and  instru- 
ments of  demise.**^  Wliere  a  lease  which  fixes  a  definite  time  for 
the  commencement  of  the  term,  states  the  number  of  months  or  years 
it  is  to  run  and  then  gives  a  wrong  date  for  its  termination,  there  is 
a  clear  mistake  in  calculation  and  the  actual  intention  of  the  parties 
will  prevail.  There  is  no  ambiguity  or  opportunity  for  applying  rules 
by  construction,  but  merely  an  error  in  computation.**^  In  explain- 
ing its  reasons  for  arriving  at  this  conclusion,  the  Missouri  court 
says:  "What  then  is  the  principal  or  prominent  idea  in  the  words 
of  both  parties  to  this  lease,  and  concerning  which  there  was  least 
probability  of  mistake  ?  It  would  seem  to  be  the  number  of  years  for 
which  the  lease  was  to  run.  When  parties  are  in  treaty  for  a  lease  of 
the  character  of  the  one  in  question,  where  buildings  were  to  be 
erected  by  the  lessee  and  a  ^ound  rent  paid,  it  would  be  natural  for 
both  parties  to  have  prominently  in  view  its  duration,  whether  it 
was  to  be  for  five,  ten,  fifteen  or  twenty  years.  This  would  be  the 
material  thing  to  be  fixed."*** 

§  118.  A  lease  is  a  single  instrument  in  spite  of  the  fact  that  it 
covers  separate  parcels  of  land  in  different  localities,  and  the  pre- 
sumption is  that  it  will  terminate  as  to  all  the  parcels  demised  at  the 
same  time.  Thus  a  lease  of  separate  timber  lots  gave  the  lessee  the 
right  to  box  turpentine  trees  and  to  cut  timber  for  a  saw-mill.  It 
contained  a  stipulation  that  the  right  to  box  trees  should  expire  five 

«« Sutton  v.  Hiram  Lodge,  83  Ga.  N.  E.  668;   Siegel  &c.  Co.  v.  Colby, 

770,  10  S.  E.  585.  176  111.  210,  52  N.  E.  917. 

"1  Carman    v.    Hosier,    105    Iowa  "'  Siegel  &c.  Co.  v.  Colby,  176  111. 

367,  75  N.  W.  323;  Page  V.  Wight,  14  210,  52  N.  E.  917,  61  111.  App.  315; 

Allen     (Mass.)     182;     Hoagland    v.  Biddle  v.  Vandeventer,  26  Mo.  500; 

Crum,  113  111.  365;  Peck  v.  Peck,  35  Nindle  v.  State,  13  Neb.  245,  13  N. 

Conn.  390.  W.  275. 

**^  Packer  v.  Roberts,  140  111.  9,  29  *"  Biddle  v.   Vandeventer,   26  Mo. 

500,  504,  per  Napton,  J. 


145  DURATION  OF  TEEM.  [§  119 

years  from  the  time  the  lessee  began  to  cut  the  timber.  It  was  urged 
that  this  meant  that  the  lease  should  terminate,  and  terminate  only 
as  to  each  lot  in  five  years  from  the  time  of  the  beginning  of  the  cut- 
ting of  timber  upon  that  particular  lot.  But  the  court  saw  nothing 
in  the  language  of  the  lease  to  indicate  that  it  should  terminate  piece- 
meal, or  that  the  several  lots  should,  or  could,  drop  out  of  it  at  dif- 
ferent times.  The  question  is  not  how  the  timber  was  located,  whether 
on  one  body  of  land  or  on  several  different  tracts,  but  how  it  was 
treated  and  dealt  with  by  the  parties  to  the  contract.^*^  But  it  is 
possible  to  have  the  term  expire  as  to  some  part  of  the  premises  every 
year.  As  where  a  lease  provided  for  clearing  so  many  acres  of  land 
every  year  for  three  years  and  allowed  the  lessor  three  crops  off  the  land 
cleared ;  it  was  held  that  the  agreement  meant  to  give  lessee  the  right 
to  make  three  crops  off  the  land  cleared  the  last  year  and  only  three 
off  the  land  cleared  the  preceding  years.***^  However,  where  land  was 
leased  for  a  term  of  four  years  and  to  be  broken  by  a  certain  date  if 
practical,  it  was  held  that  the  term  did  not  extend  beyond  the  four 
years  even  though  it  was  impractical  to  break  the  land  till  the  follow- 
ing year.**^ 

§  119.  In  determining  when  a  term  begins,  the  word  "from"  may 
be  either  exclusive  or  inclusive,  as  would  best  express  the  intention  of 
the  parties,  to  be  gathered  from  the  whole  instrument.**^  The  early 
English  case  of  Pugh  v.  Duke  of  Leeds  involving  this  point  was  an 
issue  to  try  whether  a  lease  made  in  pursuance  of  a  power  was  a  good 
and  valid  lease.  The  power  provided  that  leases  executed  in  pursu- 
ance of  it  should  not  be  in  reversion,  remainder  or  expectancy,  and 
the  lease  had  been  made  to  commence  'from  the  day  of  the  date.' 
Therefore  the  question  was  whether  this  was  a  lease  in  possession. 
And  it  turned  upon  this  whether  to  commence  'from  the  day  of  the 
date'  in  a  deed  is  to  be  construed  inclusive  or  exclusive  of  the  day  it 
bears  date.  Lord  Mansfield  pronounced  the  opinion  of  the  court, 
holding  the  lease  was  valid  and  concluded  as  follows :  "The  ground 
of  the  opinion  and  judgment  which  I  now  deliver  is,  that  'from'  may 
in  the  vulgar  use  and  even  in  the  strict  propriety  of  language,  mean 
either  inclusive  or  exclusive;  that  the  parties  necessarily  understood 
and  used  it  in  that  sense  which  made  the  deed  effectual ;  that  courts 

*«  Perkins  v.  Peterson,  110  Ga.  24,  "^Burris  v.  Jackson,  44  111.  345. 

35  S.  E.  319;  Baxter  v.  Mattox,  106  «« McGlynn  v.  Moore,  25  Cal.  384; 

Ga.  344,  32  S.  E.  94.  Deyo  v.  Bleakley,  24  Barb.   (N.  Y.) 

"«Dodson     v.     Hall,     11     Heisk.  9;    Pugh  v.  Duke  of  Leeds,  Cowp. 

(Tenn.)  198,  203.  714. 

Jones  L.  &  T.— 10 


§    119]  THE   INSTRUMENT   OF  DEMISE.  146 

of  justice  are  to  construe  the  words  of  parties  so  as  to  effectuate  their 
deeds,  and  not  to  destroy  them,  more  especially  where  the  words 
themselves  abstractedly  may  admit  of  their  meaning."**^  The  extent 
and  effect  of  this  decision  has  been  well  explained  by  the  Supreme 
Court  of  Massachusetts  in  the  following  quotation :  "Before  the  case 
of  Pugh  V.  The  Duke  of  Leeds,  all  the  cases  agree  that  the  words 
'from  the  day  of  the  date',  are  words  of  exclusion.  So  plain  was  this 
meaning  thought  to  be,  that  leases  depending  on  this  rule  of  con- 
struction were  uniformly  declared  void,  against  the  manifest  inten- 
tion of  the  parties.  Of  this  doctrine,  thus  applied.  Lord  Mansfield 
very  justly  complains,  not,  however,  on  the  ground  that  the  general 
meaning  of  the  words  had  been  misunderstood,  but  because  the  plain 
intention  of  the  parties  to  the  contract  had  been  disregarded.  All 
that  was  decided  in  that  case  was,  that  'from  the  day  of  the  date' 
might  include  the  day,  if  such  was  the  clear  intention  of  the  con- 
tracting parties ;  and  not  that  such  was  the  usual  signification  of  the 
words."*^"  So  where  the  validity  of  the  instrument  was  not  at  issue 
but  the  question  raised  was  whether  the  tenant  vacated  the  premises 
in  due  season,  it  was  held  that  a  lease  from  the  first  of  a  month  be- 
gan on  the  second  day  of  the  month.*^^  On  the  other  hand,  when  a 
lease  for  a  year  has  been  construed  by  the  parties  to  commence  on  the 
■  day  of  its  date  by  a  taking  of  possession  then,  that  day  is  to  be  in- 
cluded in  computing  the  year  and  the  term  expires  on  midnight  on 
the  preceding  day  in  the  next  year.*^^  In  another  case  the  court  in- 
ferred that  the  parties  intended  to  include  the  day  of  the  date  because 
there  was  a  provision  for  the  payment  of  quarterly  rent  at  correspond- 
ing dates  throughout  the  year.*^^  The  Connecticut  court,  however, 
without  noticing  the  ancient  authorities,  held  that  a  lease  from  the 
first  day  of  a  month  included  that  day  and  expired  on  the  last  day 
of  the  next  preceding  month  a  year  hence.  The  court  said  that  they 
believed  it  was  "the  common  understanding  of  the  community,  at 
least  in  this  state,  that  a  lease  from  the  first  of  April  should  com- 
mence on  the  first  of  April."  They  add:  "In  most  of  our  cities 
moving  day  is  either  April  first  or  May  first.    One  tenant  goes  out  and 

**^  Pugh  V.  Duke  of  Leeds,  Cowp.  ^-  Buchanan  v.  Whitman,  151  N. 

714,  725.  Y.    253,   45   N.   E.   556,   affirming   76 

^^''Bigelow    V.    Willson,     1     Pick.  Hun  67;  Marys  v.  Anderson,  24  Pa. 

(Mass.)     485,    494,    per    Wilde,    J.;  St.  272. 

quoted   with   approval   in   Goode   v.  *"  Deyo  v.  Bleakley,  24  Barb.   (N. 

Webb,  52  Ala.  452.  Y.)  9. 

"^  Atkins     v.     Sleeper,     7     Allen 
(Mass.)  487. 


II 


147  ILLEGAL    LEASES.  [§    130 

another  goes  in  on  that  day.  Yet  leases  almost  invariably  run  from 
the  first  of  April  or  May.  It  has  never  been  supposed  that  the  in- 
going tenant  by  entering  on  that  day  was  guilty  of  any  intrusion  or 
trespass."*^*  Whatever  view  may  be  taken  of  the  preceding  conflict 
between  authorities,  it  seems  settled  that  the  words  "from  the  date" 
and  "from  day  of  the  date",  when  used  in  a  lease  to  designate  the 
commencement  of  a  term  have  precisely  the  same  meaning.  This 
principle  has  long  been  established.  It  is  laid  down  by  Lord  Coke  and 
by  Lord  Mansfield.  It  is  also  in  strict  conformity  to  the  legal  sense 
of  the  words.  The  date  of  a  lease  is  not  the  hour  or  the  minute  when 
it  was  executed,  but  a  memorandum  of  the  day  when  the  deed  was 
delivered.*^^  Generally  a  lease  would  not  begin  to  run  from  a  date 
prior  to  its  execution.  That  a  lease  can  relate  back,  without  words 
clearly  indicating  that  to  be  the  intention  of  the  parties,  is  a  propo- 
sition which  cannot  be  sustained.  A  landlord  cannot  claim  rent  or 
a  tenant  be  entitled  to  enjoy  the  property  before  the  relation  of  land- 
lord and  tenant  existed.  A  reference  to  a  past  date  as  the  time  from 
which  a  term  shall  run  for  a  given  number  of  years  does  not  make 
rent  payable  from  that  time.  Such  a  reference  is  merely  a  convenient 
mode  of  designating  the  time  when  the  term  ends.*^'' 

VI.     Illegal  Leases. 

§  120.    A  colorable  lease  for  an  illegal  purpose  cannot  be  enforced. 

Certain  contracts,  such  as  gambling  contracts,  are  illegal  either  be- 
cause they  are  within  the  prohibition  of  some  statutory  enactment 
or  because  they  are  contrary  to  the  policy  of  the  common  law.  The 
general  rule  is  that  courts  will  not  grant  a  relief  to  parties  to  illegal 
contracts  and  this  applies  to  illegal  leases.  Thus,  in  one  case,  a  lease 
was  executed  and  entered  into  knowingly  for  the  purpose  of  aiding 
an  unlawful  conspiracy  and  combination  to  limit  the  production  and 
to  enhance  the  price  of  an  article  of  merchandise  in  violation  of  an 
act  of  legislature.  It  was  held  that  no  recovery  of  rent  could  be 
had  upon  this  instrument.  When  suit  is  brought  on  an  unexecuted 
contract,  void  as  against  sound  morals  or  public  policy,  the  law  will 

'^Fox  V.  Nathans,  32  Conn.  348.  ing  Co.  Lit.  46b,  and  Pugh  v.  The 

In   Marys  v.   Anderson,   24   Pa.    St.  Duke  of  Leeds,  Cowp.  714,  719;   Ba- 

272,  it  was  suggested  that  the  mat-  con  v.  Waller,  1  Rolle  387,  3  Bulst. 

ter  might  be  affected  by  the  univer-  203. 

sal  custom  of  the  people.  ^^  Commonwealth   v.    Contner,    21 

'•■^Bigelow     v.     Willson,     1     Pick.  Pa.  St.  266. 
(Mass.)   485,  494,  per  Wilde,  J.,  cit- 


§    121]  THE   INSTRUMENT   OF   DEMISE.  148 

not  lend  its  aid  but  will  leave  the  parties  where  it  finds  them.*"  If 
a  contract  is  illegal  in  the  first  instance  the  mere  fact  that  it  has 
been  executed  gives  no  right  of  recovery."*^^ 

If  a  building  is  let  to  a  tenant  who  enters  into  possession  under 
a  lease,  the  building  is  not  under  the  control  of  the  landlord  after 
such  entry,  but  it  is  under  the  control  of  the  tenant  as  long  as  he  con- 
tinues in  possession  under  the  lease,  unless  there  are  special  pro- 
visions in  the  lease  which  give  the  control  to  the  landlord.  So  it 
was  held  that  a  landlord  not  in  control  was  n.ot  responsible  for  the  il- 
legal sale  of  liquor  by  his  tenant  although  he  could  have  taken  con- 
trol by  ejecting  the  tenant  because  of  such  illegal  sale.*^^  This  ques- 
tion was  presented  in  a  difllerent  form  where  a  defendant  charged 
with  the  illegal  sale  of  liquor  set  up  a  lease  of  the  barroom  to  his 
former  barkeeper.  The  jury  found  that  the  lease  was  merely  color- 
able for  the  purpose  of  acquitting  the  defendant  from  his  accusa- 
tion and  the  lessor  was  charged  as  principal  in  maintaining  the  nui- 
sance.**"* 

An  attempt  was  made  to  vacate  a  lease  under  a  provision  that  il- 
legal use  should  annul  or  make  void  the  lease  or  other  title  under 
which  the  occupant  guilty  of  such  conduct  holds.  The  illegal  use 
had  been  by  an  undertenant  and  it  was  held  that  the  lease  of  such 
undertenant  only  was  avoided  and  not  the  principal  lease  to  the  origi- 
nal lessee.  Any  other  construction  would  operate  harshly  on  inno- 
cent parties.  The  effect  of  it  would  be  to  destroy  the  title  of  a  lessor 
however  valuable  the  term  by  the  acts  of  his  undertenant  of  which 
he  had  no  knowledge  and  over  which  for  the  time  he  had  no  con- 
trol.*" 

§  121.  Kind  of  illegality. — Ordinarily  the  illegality  in  an  illegal 
lease  is  not  found  in  the  instrument  itself  but  consists  in  the  purpose 
to  which  the  parties  intend  that  the  demised  premises  shall  be  put. 
To  make  a  lease  invalid  on  such  a  ground  it  must  be  proved  that  the 
intention  of  an  illegal  use  was  mutual  to  both  parties.**^^     It  is  per- 

^^  American  &e.  Co.  v.  Peoria  &c.  ^^°  Commonwealth    v.    Locke,    148 

Co.,  65  111.  App.  502.  Mass.  125,  19  N.  E.  24. 

*=*  Miller  v.  Ammon,  145  U.  S.  421,  "'  Healy      v.      Trant,      15      Gray 

12  Sup.  Ct.  884;  Hutehins  v.  Weldin,  (Mass.)  312. 

114  Ind.  80,  15  N.  E.  804;  Bishop  v.  «=  Ryan    v.    Potwin,    60    111.    App. 

American  &c.  Co.,  157  111.  284,  41  N.  637;    Gibson   v.    Pearsall,    1    E.    D. 

E.  765.  Smith    (N.  Y.)    90;    Arras  v.  Rich- 

*"»  Commonwealth    v.    Wentworth,  ardson,  5  N.  Y.  S.  755. 
146  Mass.  36,  15  N.  E.  138. 


t 


149  ILLEGAL  LEASES.  [§  121 

missible,  however,  to  go  outside  the  lease  to  find  the  actual  intention 
of  the  parties  in  regard  to  the  use  to  which  they  intend  the  premises 
to  be  put.  A  lease  may  be  avoided  by  parol  evidence  that  it  was  made 
with  the  intention  that  the  demised  premises  should  be  used  for  an 
unlawful  purpose,  and  of  their  actual  use  for  that  purpose,  although 
it  contains  an  express  covenant  of  the  lessee  to  make  no  unlawful 
use  of  them.*®^  A  contract  to  let  a  house  for  a  purpose  forbidden 
by  a  city  ordinance  is  void,*^*  and  if  a  business,  such  as  maintaining 
a  billiard  parlor  which  requires  a  license  from  city  authorities,  is 
carried  on  in  the  leased  premises  without  any  license,  a  lessor,  who 
has  leased  the  premises  for  this  purpose,  with  knowledge  that  no  li- 
cense had  been  granted,  could  not  recover  rent  under  his  lease.*®^ 
Still  a  lease  valid  upon  its  face  is  not  to  be  condemned  as  unlawful 
because  the  purpose  for  which  the  demised  premises  are  to  be  used 
might,  under  certain  circumstances,  be  within  the  prohibition  of  a 
statute.*^®  Certain  premises  were  leased  for  the  sale  of  intoxicat- 
ing liquors  but  it  was  distinctly  agreed  that  the  traffic  should  be  law- 
ful. It  was  held  under  these  circumstances  that  the  lessor  could  re- 
cover rent.^^^ 

In  fixing  upon  the  lessor  the  knowledge  of  the  illegal  purpose  to 
which  the  leased  premises  are  to  be  put,  the  knowledge  of  a  rental 
agent  may  be  imputed  to  his  principal.*^^  It  has  been  suggested, 
however,  that  the  doctrine  of  constructive  notice  can  only  be  applied 
in  favor  of  an  innocent  party  and  cannot  be  set  up  for  the  benefit 
of  one  who  is  setting  up  his  own  wrongful  act  in  his  defense.  So, 
where  an  agent  rented  premises  for  gambling  purposes,  an  innocent 
principal  was  allowed  to  disown  the  agent's  contract  and  recover,  on 
a  quantum  valehat,  for  the  use  of  the  premises.*^^ 

In  certain  cases  a  lease  has  from  the  nature  and  situation  of  the 

*"  Sherman   v.   Wilder,   106   Mass.  for  rent  provided  the  jury  find  that 

537;  Ernst  v.  Crosby,  140  N.  Y.  364,  lessors  did   not  knowingly    let   the 

35   N.    B.    603;    Vanbuskirk   v,    Mc-  premises    for    the    illegal    sale    or 

Naughton,  34  N.  Bruns.  125.  keeping    for    sale    of    intoxicating 

^"  Milne  v.  Davidson,  5   Mart.  N.  liquors,    or    knowingly    permit    the 

S.  (La.)  409,  16  Am.  Dec.  189.  premises  to  be  so  used.     Codman  v. 

*«*  Simpson    v.    Wood,    105    Mass.  Hall,  9  Allen  (Mass.)  335. 

263.  ^'«Ryan    v.    Potwin,    62    111.    App. 

^'' Shedlinsky    v.     Budweiser    &c.  134;  Ashbrook  v.  Dale,  27  Mo.  App. 

Co.,  163  N.  Y.  437,  57  N.  E.  620.  649. 

"'  Whalen   v.    Leisy   &c.    Co.,    106  "^  Stanley  v.  Chamberlin,  39  N.  J. 
Iowa    548,    76    N.    W.    842.      Where  Law  565.     See  also,  Arras  v.  Rich- 
premises  are  let  for  sale  of  intoxi-  ardson,  5  N.  Y.  S.  755. 
eating  liquors,  lessee  will  be  liable 


§    121]  THE   INSTRUMENT    OF    DEMISE.  150 

subject-matter  necessarily  involved  the  doing  of  some  act  forbidden 
by  law  and  has  therefore  been  held  illegal  and  unenforceable.  As 
where  a  part  of  a  sidewalk  was  leased  for  private  purposes  in  viola- 
tion of  an  ordinance,  the  lease  was  invalid  and  an  action  for  rent  could 
not  be  maintained  under  it.*'^"  So  the  covenant  of  a  lessor  to  keep 
up  a  dam  across  a  navigable  stream  was  an  illegal  contract  and  could 
not  be  enforced.*''^  The  same  doctrine  was  applied  where  certain 
land  reserved  as  the  property  of  the  United  States  was  leased  by 
a  squatter  who  had  taken  possession  of  it.  The  lease  was  illegal  and 
could  not  be  enforced,  even  between  the  parties,  to  prevent  the  lessee 
from  denying  his  landlord's  title.*'^^  But  a  provision  for  the  erection 
of  an  unlawful  structure,  such  as  a  bay  window  which  would  encroach 
upon  the  street,  would  not  render  the  entire  lease  void  and  prevent 
the  recovery  of  rent.*^^  And  a  letting  which  is  originally  in  viola- 
tion of  an  ordinance  might  become  valid  if  acquiesced  in  by  the  proper 
authorities,  so  that  rent  could  be  recovered  on  it.*'^* 

To  establish  the  defense  of  illegality,  it  must  be  shown  that  the 
landlord,  at  the  time  the  agreement  was  made  with  his  tenant,  was 
a  party  to  the  illegal  intent  and  let  the  premises  in  furtherance 
thereof.*''^  Mere  knowledge  that  the  lessee  would  use  the  premises 
in  violation  of  the  law  is  not  sufficient  to  avoid  the  lease  unless  the 
lessor  was  a  party  to  such  intent  and  did  some  act  in  aid  and  further- 
ance of  the  intended  violation  of  the  law.^''"  The  authority  on  which 
this  rule  is  based  is  the  well-established  doctrine  that  subsequent  il- 
legal use  of  goods  by  a  vendee  will  not  prevent  the  vendor  from  main- 
taining an  action  for  the  purchase  price.  Mere  knowledge  of  such 
intended  use  will  not  preclude  the  vendor  where  he  does  not  in  any 
manner  participate  in  it.*''^ 

^'''Heineck  v.  Grosse,  99  111.  App.  ly,   18   R.    I.    197,   30   Atl.    965.     In 

441.  Ralston  v.   Boady,   20   Ga.   449,  the 

^"  Dyer  v.  Curtis,  72  Me.  181.  court    say:      "There    must    be    an 

*"  Dupas  V.   Wassell,   1    Dill.    (U.  agreement,  express  or  implied,  that 

S.)  213,  8  Fed.  Gas.  No.  4182.  the  tenement  should  be  used  for  an 

*^^  Burke  v.  Tindale,  12  Misc.   (N.  unlawful    purpose.      And    the    bare 

Y.)   31.  proof  of  a  knowledge  that  it  might 

"*  Mayer   v.   Waters,   45   Kan.    78,  and  probably  would  be  so  used  will 

25  Pac.  212.  not,  perhaps,   suffice.     Some  of  the 

"'  Gibson    v.    Pearsall,    1    E.    D.  authorities    I    find,    upon    examina- 

Smith  (N.  Y.)  90.  tion,  go  to  the  full  extent  of  holding 

*"  Updike   V.    Campbell,    4    E.    D.  that    bare    knowledge    is    suflScient. 

Smith  (N.  Y.)  570;  Taylor  v.  Levy,  and  that  the  criminal  intent  will  be 

(Md.)   24  Atl.  608;  Almy  v.  Greene,  inferred  from  the  knowledge." 

13  R.  I.  350;    Miller  v.  Maguire.  18  *"  Kreiss  v.  Seligman,  8  Barb.  (N. 

R.  I.  770,  30  Atl.  966;  Allen  v.  Keil-  Y.)     439;     Dater    v.    Earl,    3    Gray 


151  ILLEGAL  LEASES.  [§  123 

Still  a  Canadian  case  should  be  noticed  in  which  it  was  held  that 
mere  knowledge  on  the  part  of  the  lessor  of  the  illegal  use  to  which 
the  premises  are  put  will  bar  him  in  an  action  for  the  rent.^^^ 

§  122.  Use  of  premises  for  the  purpose  of  prostitution. — Letting 
a  house  to  be  used  as  a  bawdy  house  has  been  held  to  be  indictable  at 
common  law,  because  the  exciting,  encouraging  and  aiding  one  to  com- 
mit a  misdemeanor  is  of  itself  a  misdemeanor.*^^  While  the  letting  of 
a  house  is  in  itself  an  innocent  act,  the  purpose  is  not  innocent  in  case 
the  party  lets  his  house  for  the  purpose  of  prostitution  and  knows 
that  it  is  useS  accordingly.  Keeping  a  bawdy  house  was  an  offense 
at  common  law,  and  letting  a  house  for  such  purpose  must,  therefore, 
be  a  misdemeanor.*®"  So  it  has  been  generally  held  that  rent  cannot 
be  recovered  on  a  lease  when  the  premises  were  let  to  be  used  for  the 
purpose  of  prostitution,  even  in  the  absence  of  any  statute  prohibit- 
ing such  traffic.*®^  In  charging  the  lessor  with  knowledge  of  the  use 
to  which  the  house  is  to  be  put,  evidence  of  prior  bad  reputation  of 
the  house  is  admissible.  The  lessor  cannot  say  he  has  no  knowledge 
of  that  which  is  notorious  in  the  neighborhood.*®^  It  is  necessary 
for  the  defendant  to  prove  ( 1 )  that  the  place  was  a  house  of  ill-fame, 
and,  (2)  that  the  plaintiff  had  knowledge  of  that  fact  when  he  made 
the  lease  creating  the  tenancy.  For  this  purpose  evidence  of  the 
reputation  of  the  house  both  before  and  after  the  execution  of  the 
lease  is  admissible.  Evidence  of  acts  tending  to  show  the  character 
of  the  house  could  be  given  even  though  the  plaintiff  was  not  present 
at  the  time  the  acts  were  committed.*®^ 

In  Illinois  it  is  made  an  offense  by  statute  to  let  a  house  for  pur- 
poses of  prostitution  and  in  consequence  it  is  held  with  even  greater 

(Mass.)   482;  Sortwell  v.  Hughes,  1  Chateau  v.   Singla,  114   Cal.   91,   45 

Curt.   (U.  S.)   244,  22  Fed.  Cas.  No.  Pac.  1015,  55  Am.  St.  63;  Dougherty 

13177;  Hill  v.  Spear,  50  N.  H.  253;  v.  Seymour,  16  Col.  289,  26  Pac.  823; 

Gaylord    v.    Soragen,    32    Vt.    110;  Ernst  v.  Crosby,  140  N.  Y.   364,  35 

Aiken    v.     Blaisdell,     41    Vt.     655;  N.  E.  603;  Egan  v.  Gordon,  65  Minn. 

Green  v.  Collins,  3  Cliff.  (U.  S.)  494,  505,  68  N.  W.  103;  Ralston  v.  Boady, 

10  Fed.  Cas.  No.  5755.  20  Ga.  449;  Appleton  v.  Campbell,  2 

*^«  Vanbuskirk  v.  McNaughton,  34  C.  &  P.  347,  12  E.  C.  L.  609;   Hun- 

N.  Bruns.  125.  stock  v.   Palmer,   4   Tex.   Civ.   App. 

"»Rex  v.  Philipps,  6  East  464.  459,  23  S.  W.  294. 

***  Commonwealth    v.    Harrington,  *"-  Demartini  v.  Anderson,  127  Cal. 

3  Pick.  (Mass.)  26.  33,  59  Pac.  207. 

*"Ashbrook  v.  Dale,  27  Mo.  App.  «^  Egan  v.  Gordon,  65  Minn.  505, 

649;   Trobock  v.  Caro,  60  Cal.  304;  68  N.  W.  103. 


§§    123,    12-1]  THE    INSTRUMENT    OF    DEMISE.  152 

reason  that  the  lessor  cannot  recover  rent  under  a  lease  for  such 
purposes.*®* 

Where  the  guardian  of  a  minor  owning  a  leased  dwelling  house 
knows  that  it  is  used  solely  for  a  house  of  prostitution,  and  continues 
from  month  to  month  to  rent  it  and  permit  such  use  such  guardian 
must  be  held  to  rent  the  property  to  be  used  as  a  house  of  prostitution 
and  is  liable  in  damages  to  an  adjacent  proprietor.  He  may  be  en- 
joined from  continuing  to  permit  such  use.*^^ 

§  123,  Premises  to  be  used  for  gambling. — Where  a  statute  makes 
it  an  offense  punishable  with  a  fine  to  let  a  house  for  the  purpose  of 
a  gambling  resort,  the  taint  of  illegality  attaches  to  the  lease  and  the 
lessor  cannot  recover  the  rent  reserved  on  it.*®^  It  seems  also  that  the 
same  result  follows  from  a  statutory  provision  that  gambling  is  unlaw- 
ful without  any  specific  provision  that  real  estate  shall  not  be  let  for 
such  a  purpose.*^  ^  However,  where  betting  and  gambling  was  not  pro- 
hibited by  the  statute,  but  permitted  by  it  under  certain  conditions,  a 
sale  of  the  exclusive  betting  and  gaming  privileges  at  a  race  course  was 
not  illegal,  since  the  sale  contemplated  the  exercise  of  the  privilege  in 
a  mode  which  was  authorized  by  the  statute.*^®  A  lease  of  a  store 
which,  by  the  understanding  of  the  parties,  is  to  be  used  for  the  sale  of 
lottery  tickets  is  void  where  the  laws  of  the  state  render  void  every  con- 
tract made  to  further  the  lottery  business.*®^  But  where  premises  leased 
for  a  clubroom  are  converted  into  a  gambling  house,  the  lessee  is  not 
released  from  his  contract  in  the  absence  of  evidence  that  the  lessor 
knew  the  object  for  which  the  rooms  were  to  be  employed  was  differ- 
ent from  the  one  mentioned  in  the  written  lease.*^" 

§  124.  Setting  up  defense  of  illegality. — It  is  true  that  a  tenant 
cannot  ordinarily  deny  the  title  of  his  landlord,  which  he  admits  in 
the  lease,  or  under  which  he  receives  possession.  But  no  rule  pre- 
cludes either  party  from  showing  the  illegality  of  the  lease  itself  on 
grounds  of  public  policy.    On  such  grounds,  because  of  the  disability 

^«*  Fields  V.   Brown,   188    111.   Ill,  6629;    Gibson   v.   Pearsall,   1   E.   D. 

58  N.  E.  977,  reversing  89  111.  App.  Smith  (N.  Y.)  90;  Updike  v.  Camp- 

287.  bell,  4  E.  D.  Smith  (N.  Y.)  570. 

*»»  Massan  v.  French,  61  Tex.  173.  *^  Stratford   Turf  Assn.  v.  Fitch, 

**»  Harris  v.  McDonald,  79  111.  App.  28  Ont.  579. 

638;  McDonald  v.  Tree,  69  111.  App.  ^''Edelmuth  v.  McGarren,  4  Daly 

134.  (N.  Y.)  467,  45  How.  Pr.  191. 

«^  Stanley  v.  Chamberlin,  39  N.  J.  *^  Commagere   v.    Brown,    27    La, 

Law   565;    Holmead    v.    Maddox,    2  Ann.  314. 
Cranch  (C.  C.)  161,  12  Fed.  Gas.  No. 


\ 


153  LEASES  OBTAINED  BY  FRAUD.  [§'  125 

of  the  lessor  not  to  afford  protection  to  the  lessee,  the  court  refuses  to 
enforce  a  contract  to  do  an  illegal  act,  or  one  in  which  the  consider- 
ation is  illegal,  however  the  illegality  may  be  made  to  appear  in  evi- 
dence, receiving  even  oral  testimony  to  determine  the  status  of  a  writ- 
ten contract  in  this  respect.*^ ^  Wliere  the  parties  to  a  lease  intended 
that  the  premises  should  be  put  to  an  illegal  use,  the  lessor  cannot 
maintain  an  action  for  the  rent  reserved  in  the  lease*^^  and  he  can- 
not bring  use  and  occupation  for  the  value  of  the  use  of  the  prem- 
ises.*^^  A  bond  given  for  the  payment  of  rent  reserved  on  a  lease 
executed  by  the  parties  with  the  intent  that  the  premises  shall  be 
used  for  an  illegal  purpose  is  equally  illegal  with  the  lease,  and 
no  recovery  can  be  had  thereon.*^*  The  illegality  may  be  shown 
without  regard  to  whether  the  contract  is  under  seal  or  not.  A 
contract  sealed  or  not  sealed,  though  on  its  face  honest  and  law- 
ful may  nevertheless  be  shown  to  be  illegal  and  contrary  to  public 
morals.*^^  That  the  lessee  is  in  pari  delicto  with  the  lessor  does  not 
deprive  the  lessee  of  the  right  to  defend  against  the  enforcement  of 
the  provisions  of  a  lease  on  the  ground  that  the  contract  was  in  viola- 
tion of  a  statute,  since  such  a  defense  is  allowed  on  grounds  of  public 
policy  and  not  for  the  benefit  of  the  party  presenting  it.*^^ 

A  lease  originally  void  for  illegality  because  of  the  purpose  for 
which  it  was  made,  does  not  become  valid  by  assignment  of  it  by  the 
lessee.*" 

VII.    Leases  Obtained  by  Fraud. 

§  125.  The  rule  that  fraud  in  the  making  of  a  written  agreement 
may  be  shown  by  parol  evidence,  to  change  its  legal  effect,  is  too  well 
established  to  need  any  citation  of  authorities  to  sustain  it.  The  evi- 
dence, however,  must  be  clear,  precise  and  indubitable.*^^  In  juris- 
dictions where  the  distinction  between  law  and  equity  is  still  pre- 

"^Dyer  v.  Curtis,  72  Me.  181.  ^"'^  Ryan   v.    Potwin,    60    111.    App. 

^"2  Sherman  v.  Wilder,   106   Mass.  637. 

537;   Mound  v.  Barker,  71  Vt.  253,  «« Fields  v.   Brown,   188    111.    Ill, 

44  Atl.  346;   Holmead  v.  Maddox,  2  58  N.  E.  977,  reversing  89  111.  App. 

Cranch.    (C.    C.)    161,   12   Fed.   Cas.  287. 

No.    6629;    Simpson   v.    Wood,    105  "'Sherman  v.   Wilder,   106   Mass. 

Mass.  263;   Smith  v.  White,  L.  R.  1  537. 

Eq.  626.  *=8^olfe    v.    Arrott,    109    Pa.    St. 

"'Ashbrook  v.  Dale,  27  Mo.  App.  473,  1  Atl.  333;  Sisson  v.  Kaper,  105 

649.  Iowa  599,  75  N.  W.  490. 

*»*  Mound  v.  Barker,  71  Vt.  253,  44 
Atl.  346. 


§    126]  THE   IXSTRUilEXT    OF   DEMISE.  154 

served,  if  a  trial  be  at  law,  fraud  in  the  execution  of  a  deed  may  be 
given  in  evidence;  as  that,  through  misreading,  or  the  substitution  of 
one  paper  for  another,  or  by  other  device  or  trickery,  the  obligor  was 
induced  to  seal  it,  believing,  at  the  time,  that  he  was  sealing  some- 
thing else ;  and  it  may  also  be  proved  that  what  purports  to  be  a  deed 
is,  in  truth,  not  a  deed,  but  a  forged  instrument;  but  in  a  tribunal 
without  equity  powers  it  cannot  be  proved  that  the  transactions  which 
preceded  and  induced  the  execution  of  the  deed  were  fraudulent. 
Wliere  a  party  knowingly  and  voluntarily  signs  a  deed,  although  he 
be  induced  thereto  by  the  fraudulent  contrivances  of  others,  yet  if  it 
be  such,  upon  its  face,  as  will  convey  title,  it  can  only  be  impeached 
and  set  aside,  and  parol  evidence  received  for  that  purpose,  in  a  court 
of  equity.*®^  So  it  has  been  held  that  a  lease  under  seal  can  only  be 
defeated  in  a  court  of  law  by  showing  fraud  in  its  execution  whereby 
a  party  was  induced  to  sign  something  he  did  not  intend  to  sign. 
When  a  party  knowingly  and  voluntarily  executes  a  deed,  even  though 
it  be  by  a  fraudulent  contrivance,  it  cannot  be  impeached  and  set 
aside  in  a  court  of  law.^""  A  bill  in  equity  to  cancel  the  lease  would 
be  a  proper  remedy  where  fraud  in  its  procurement  can  be  shown.  But 
the  right  to  the  possession  of  land  will  not  be  changed  and  affected 
by  a  preliminary  order  granted  on  an  ex  'parte  application.  For  in 
that  way  the  complainant  would  be  given  the  fruits  of  a  final  decree 
in  his  favor.  A  court  of  chancery  has  no  more  power  than  any  other 
to  condemn  a  man  unheard,  and  to  dispossess  him  of  property  yrima 
facie  his,  and  hand  over  its  enjoyment  to  another  on  an  ex  parte 
claim.^**^  In  several  cases  it  has  been  decided  that  possession  of  lands 
is  not  to  be  disturbed  by  means  of  a  preliminary  injunction.^"^  When 
there  has  been  a  premature  adjudication  of  the  merits  of  a  con- 
troversy, the  party  injured  by  it  may  appeal  as  from  a  final  order.^"^ 

§  126.  Rescission  of  lease  and  defense  of  action  for  rent. — Where 
a  landlord  by  artifice  prevents  a  tenant  from  discovering  defects  in 
the  leased  premises  and  fraudulently  misrepresents  their  condition, 

4Mj^gj,j.    0^    Fraud    and    Mistake  ^"^  Arnold»v.  Bright,  41  Mich.  207, 

(Bump's  Ed.)   332;   Story's  Eq.  Jur.  2  N.  W.  1(5. 

(6th  Ed.),  §  437;  Taylor  v.  King,  6  =^<^  Hemingway  v.    Preston,    Walk. 
Munf.    (Va.)    358,   8   Am.    Dec.    748,  Ch.    (Mich.)    528;    People  v.  Simon- 
note;  Chapin  v.  Billings,  91  111.  539;  son,  10  Mich.  335. 
Equitable  Trust  Co.  v.  Fisher,  106  ="' Barry  v,  Briggs,  22  Mich.  201; 
111.  189.  Lewis    v.    Campau,    14    Mich.    458; 

'""Resser  v.   Corwin,  72   111.  App.  Taylor  v.  Sweet,  40  Mich.  736. 
625. 


i 


155  LEASES  OBTAINED  BY  FRAUD.  [§  126 

the  tenant  is  entitled  to  rescind  the  lease,  vacate  the  premises  and 
defend  an  action  based  on  a  claim  for  rent  under  it.^"*  That  a  lessee 
was  induced  to  accept  a  lease  by  fraudulent  representations  on  the 
part  of  the  lessor  as  to  a  material  point  in  the  construction  of  the 
demised  premises  is  a  good  defense  to  an  action  for  rent.^*'^  This 
defense  goes  to  the  original  execution  and  validity  of  the  lease  and 
the  covenants  to  pay  rent.  If  consent  to  it  was  obtained  by  fraud, 
then  it  was  not  such  real  and  free  consent  as  to  give  it  validity.  The 
false  statement  must  be  of  some  matter  which  is  an  essential  ele- 
ment in  the  agreement  which  goes  to  the  substance  of  it  and  upon 
which  the  consent  was  based.  If  it  be  of  this  material  character, 
then  there  is  no  mutual  consent  to  the  contract,  and  the  party  de- 
ceived may  rescind,  provided  he  does  it  on  discovery  of  the  fraud  and 
returns  to  the  other  party  everything  of  value  which,  he  has  re- 
ceived under  it.  If  the  contract  has  been  fully  executed  on  both 
sides  and  the  party  injured  cannot  restore  the  other  to  his  previous 
condition,  the  only  remedy  at  law  is  by  action  for  deceit  or  by  re- 
coupment of  damages.  The  mere  possession  of  property  which  was 
the  subject-matter  of  the  contract  will  not  take  away  the  right  of 
rescission  if  possession  is  surrendered  as  soon  as  the  fraud  is  dis- 
covered.^*'^ In  one  case  a  lessee  occupied  the  premises  a  year  before 
rescinding  the  lease  on  the  ground  of  fraudulent  representation  re- 
garding the  income  from  the  property.  Such  action  was  early  enough 
to  be  effective.  The  lessee  could  not  come  to  a  full  and  certain 
knowledge  of  what  would  be  the  amount  of  business  or  of  profits 
yearly  till  the  end  of  the  year ;  and  he  could  not  be  justly  regarded  as 
voluntarily  confirming  a  contract  believed  to  be  fraudulent,  because 
he  did  not  repudiate  it  at  an  earlier  period  upon  a  violent  presump- 
tion of  fraud,  instead  of  waiting  till  the  close  of  the  year  when  it 
would  become  so  certain  that  it  could  be  clearly  proved.^"^  However, 
a  delay  of  fourteen  months  before  vacating  land  because  it  was  liable 

=>"*  Haines  v.  Downey,  86  111.  App.  Wise,  132  N.  Y.  306,  30  N.  E.  837; 

373;   Blake  v.  Ranous,  25   111.  App.  Haines  v.  Downey,  86  111.  App.  373; 

486;  Sisson  v.  Kaper,  105  Iowa  599,  Wolfe  v.  Arrott,  109  Pa.  St.  473,  1 

75  N.  W.  490;  Rand  &c.  Co.  v.  Wick-  Atl.  333 

ham,    60    Mo.    App.    44;    Morris   v.  ="' Milliken     v.      Thorndike,      103 

Shakespeare  (Pa.),  12  Atl.  414.  Mass.   382,   in   the   words  of  Judge 

'^"'^  Milliken     v.      Thorndike,     103  Colt.      Kiernan    v.    Terry,    26    Ore. 

Mass.    382;    Irving   v.    Thomas,    18  494,   38    Pac.    671;    Whitney   v.    Al- 

Me.  418;    Pry  v.   Day,  97   Ind.  348;  laire,  4  Denio   (N.  Y.)  554;   Daly  v. 

Barr  v.  Kimball,  43  Neb.  766,  62  N.  Wise,  132  N.  Y.  306,  30  N.  E.  837. 

W.  196;    Dennison  v.   Grove,   52  N.  '"Urving  v.  Thomas,  18  Me.  418. 
J.    Law   144,    19    Atl.    186;    Daly   v. 


§    127]  THE   INSTRUMENT    OF   DEMISE.  156 

to  overflow  barred  the  lessee's  rights.  He  had  ample  means  of  as- 
certaining the  character  of  the  land  and  its  liability  to  overflow  be- 
fore he  took  possession.  If  he  desired  to  rescind  he  should  have  done 
so  within  a  reasonable  time,  and  not  have  waited  till  a  time  which  was 
certainly  unreasonable.^**®  So,  where  a  lessee  continued  to  occupy 
premises  for  eighteen  months  after  discovering  fraud  in  the  state- 
ment in  regard  to  their  condition  he  could  not  disafiirm  the  contract 
on  that  ground.^  "'^  And  a  delay  of  sixteen  years  on  the  part  of  a 
lessee  to  object  to  a  lease  on  the  ground  that  it  was  obtained  by 
fraud  would  defeat  his  right  to  set  up  such  an  objection  after  that 
time.^^**  The  lessee  is  deemed  to  affirm  the  lease  if  after  discovering 
the  fraud  he  continues  to  occupy  the  land,  and  makes  no  attempt  to 
rescind.^ ^^  So  where  the  lessee  left  the  premises  and  then  returned 
to  them  after  a  temporary  absence,  he  was  precluded  from  subse- 
quently rescinding  the  lease  on  the  ground  of  alleged  fraud.^^^ 

When  a  person  in  possession  of  land  has  by  fraud  been  induced  to 
accept  a  lease  of  it  from  one  not  the  owner,  such  lease  cannot  be  set 
up  to  create  an  estoppel  against  the  defrauded  tenant  to  deny  his 
tenant's  title.^^^ 

The  waiver  of  a  right  to  rescind  a  lease  on  the  ground  of  a  fraudu- 
lent representation  in  regard  to  the  premises  is  a  sufficient  considera- 
tion for  an  undertaking  by  the  lessor  to  remedy  a  defect.  Under  such 
circumstances  the  lessee  has  a  well  recognized  right  to  rescind  which 
he  foregoes  in  reliance  on  the  lessor's  promise  to  set  the  matter  right, 
and  to  allow  the  lessor  to  escape  the  binding  force  of  such  promise 
would  be  rank  injustice  to  the  lessee.^^* 

§  127.  In  Missouri  the  doctrine  is  that  the  defense  of  fraud  to  a 
demand  at  law,  as  in  case  of  a  demand  for  rent  under  a  lease,  is 
triable  by  jury,  even  though  the  defense  concludes  with  a  prayer  for 
the  cancellation  of  the  instrument  sued  on,  as  that  can  be  rejected  as 
surplusage.^^^  By  the  Missouri  statute  actions  for  the  recovery  of 
money  only  are  triable  by  jury,  and  a  suit  for  rent  seeks  the  recovery 

""'Resser  v.   Corwin,   72  111.  App.  "=  Blake  v.  Dick,  15  Mont.  236,  38 

625.  Pac.  1072. 

'•*Bell  V.  Baker,  43  Minn.  86,  44  "'Johnson  v.  Chely,  43  Cal.  299; 

N.  W.  676.  McDevitt   v.    Sullivan,   8    Cal.    592; 

""Campau    v.    Lafferty,    50    Mich.  Peralta  v.  Ginochio,  47  Cal.  459. 

114,  15  N.  W.  40;   Lynch  v.  Sauer,  "*  Sisson  v.  Kaper,  105  Iowa  599, 

16  Misc.  R.   (N.  Y.)   1.  75  N.  W.  490. 

^'^Herrin  v.  Libbey,   36  Me.  350;  "=  Rand   &c.   Co.   v.   Wickham,   60 

Kiernan   v.   Terry,   26   Ore.   494,   38  Mo.  App.  44. 
Pac.  671. 


157  LEASES  OBTAINED  BY  FRAUD.  [§  128 

of  money.  Besides,  it  has  been  repeatedly  decided  in  that  state  that 
the  defense  of  fraud  against  a  legal  demand  is  triable  by  jury,^^®  and 
that,  even  where  an  equitable  defense  is  interposed,  the  right  of  trial 
by  jury  still  remains.^"  The  mere  fact  that  the  answer  concludes 
with  a  prayer  for  the  cancellation  of  the  lease,  can  make  no  difference. 
That  is  not  the  main  relief  asked  by  the  defendant,  but  mere  ancillary 
relief.  It  is  only  where  matters  of  law  and  equity  are  so  blended  that 
the  case  could  not  properly  be  tried  by  a  jury,  that  the  action  is 
triable  by  the  chancellor.^^^ 

§  128.  Election  of  remedies. — Upon  discovering  a  fraudulent  rep- 
resentation after  accepting  a  lease  and  entering  into  possession  of  the 
premises,  a  lessee  is  not  compelled  to  give  up  the  premises  and  rescind 
the  lease,  but  in  an  action  against  him  for  rent  may  set  up  his  damages 
from  such  fraudulent  representations.^^^  The  lessee  has  this  election 
of  remedies  or  courses  to  pursue.  He  may  recoup  in  damages  when 
sued  for  rent;  or  if  he  has  fully  paid  the  rent  he  may  recover  the 
damages  in  an  action  instituted  for  that  purpose,  or  on  discovering 

the  falsity  of  the  representations  he  may  rescind  the  contract  of 

lease.^20 

In  some  western  states  it  has  been  held  to  be  the  rule  that  where 
a  contract  of  lease  was  vitiated  by  fraud  on  the  part  of  the  lessor,  the 
lessee  had  his  election  either  to  abandon  the  lease  entirely  or  to  hold 
on  for  the  term  at  what  the  premises  were  reasonably  worth.^^^ 
But  the  better  view  seems  to  be  that  until  the  lessee  elects  to  re- 
scind he  holds  under  the  agreement  and  on  the  terms  expressed  in 
it,  even  though  he  was  induced  to  enter  into  it  by  fraud.  The  dam- 
ages sustained  by  reason  of  the  deceit  would  go  to  diminish  the  amount 
recovered  under  the  agreement,  and  if  they  exceeded  the  rent  reserved, 
the  verdict  would  be  for  the  defendant.^^^  The  same  principle  holds 
true  of  a  lease  under  seal.^^^    Until  rescission  recovery  would  be  on 

™  Kitchen  v.  Cape  Girardeau  &c.  N.   W.    196;    Herrin   v.    Libbey,    36 

R.  Co.,   59   Mo.   514;    Earl  v.   Hart,  Me.  350. 

89  Mo.  263,  1  S.  W.  238.  "» Barr  v.   Kimball,   43   Neb.    766, 

="  Wolff  V.  Schaeffer,  4   Mo.  App.  62  N.  W.  196. 

367,  s.  c.  74  Mo.  154.  »=i  Mitchell  v.  Zimmerman,  4  Tex. 

™Kortjohn    v.    Seimers,    29    Mo.  75.     See  also,  Blackman  v.  Kessler, 

271;  Allen  v.  Logan,  96  Mo.  591,  10  110  Iowa  140,  81  N.  W.  185. 

S.  W.  149.  =>"  Hall  V.   Ryder,   152   Mass.   528, 

"*Dennison    v.    Grove,    52    N.    J.  25  N.  E.  970. 

Law  144;  19  Atl.  186;  Pryor  v.  Fos-  "^^  Herrin  v.   Libbey,  36   Me.   350; 

ter,   130   N.   Y.   171,   29   N.   E.    123;  McCarty  v.  Ely,  4  E.  D.  Smith   (N. 

Barr   v.   Kimball,    43   Neb.    766,    62  Y.)  375;  Carhart  v.  Ryder,  11  Daly 


§■    129]  THE    IXSTRUMEXT    OF    DEMISE.  158 

the  lease,  subject  to  possible  reductions  by  way  of  counter-claim  or 
set-off  in  jurisdictions  where  the  doctrine  of  counter-claim  is  in  force. 

In  Illinois  the  doctrine  is  that  if  the  lessees  desire  to  rescind  on 
account  of  fraud,  it  is  their  duty  to  do  so  promptly  when  they  dis- 
cover it.  Failing  to  do  so  they  elect  to  continue  the  lease  in  force 
and  are  liable  on  the  covenants,  and  must  be  remitted  to  their  remedy, 
if  any  they  have,  by  action  for  deceit  or  by  bill  in  equity.^-*  A  lessor 
in  that  jurisdiction  is  not,  however,  estopped  to  impeach  the  lease 
as  for  fraud  on  the  part  of  the  lessee  because  he  has  accepted  rent 
where  he  did  so  without  knowledge  of  the  fraud.^^^ 

Wliere  a  lessee  is  entitled  to  obtain  a  renewal  on  payment  of  a  sum 
equivalent  to  the  best  offer  the  owner  obtains  for  the  premises  and  is 
forced  to  pay  more  than  he  should  by  the  false  allegation  of  a  large 
offer,  the  lessee  is  entitled  to  recover  back  the  sum  beyond  the  highest 
bona  fide  offer  which  the  lessor  received.^^®  So,  a  misrepresentation 
as  to  a  former  rental  can  be  set  up  as  a  defense  in  an  action  for  rent, 
and  the  actual  amount  of  the  former  rental  only  can  be  recovered.^-^ 

§  129.  What  constitutes  fraud. — A  representation  which  merely 
amounts  to  a  statement  of  opinion,  judgment  or  expectation,  or  is 
vague,  and  indefinite  in  its  nature  and  terms,  or  is  merely  a  loose 
conjectural  or  exaggerated  statement,  is  not  sufficient  to  justify 
rescission.^^®  The  same  is  true  where  the  proof  fails  to  show  that 
the  representations  were  false  or  were  made  with  a  fraudulent  in- 
tent to  induce  the  defendant  to  lease  the  premises.^^^  It  is  es- 
sential that  the  lessee  should  have  entered  into  the  contract  in 
reliance  on  the  false  representations.^^**  Alleged  representations 
of  a  lessor  as  to  the  amount  that  certain  crops  would  produce 
are  a  matter  of  opinion  and  cannot  be  regarded  as  fraudulent. 
A  fraudulent  representation  as  to  the  number  of  acres  in  a  field 
is  proper  matter  of  counter-claim  to  reduce  the  stipulated  rent;  but 
if  there  is  no  allegation  of  damage  by  reason  of  the  representations, 
the  fraud  is  no  defense.^^^  It  is  the  duty  of  every  person,  in  transact- 
ing business,  to  use   ordinary  care   and  prudence,   and  whether  a 

(N.    Y.)    101;    Wallace    v.    Lent,    1  "'Powell  v.   F.  C.   Llnde   Co.,   49 

Daly  (N.  Y.)   481.  N.  Y.  App.  Div.  286,  64  N.  Y.  S.  153. 

==^  Little  V.  Dyer,  35  111.  App.  85;  =>=«  Buschman  v.  Codd,  52  Md.  202, 

McCoull    V.    Herzberg,    33    111.    App.  207. 

542;  Johnson  v.  Wilson,  33  111.  App.  ==*  Lewis  v.  Clark,  86  Md.  327,  37 

639.  Atl.  1035. 

'^United  Order  &c.  v.  Fitzgerald,  "» Slyfield    v.    Cordingly,    72    Iowa 

59  111.  App.  362.  762,  34  N,  W.  602. 

"^Guffey   V.    Clever,    146    Pa.    St.  '^^  Holton  v.   Noble,  83   Cal.  7,  23 

548,  23  Atl.  161.  Pac.  58. 


159  COLLATERAL  PAROL  AGREEMENT.  [§  130 

lessee  acted  with  due  care  and  prudence  in  relying  on  the  statement  of 
an  agent  of  the  lessor  in  regard  to  the  number  of  acres  under  cultiva- 
tion is  a  question  for  the  jury  and  not  for  the  court.^^^ 

Misrepresenting  the  legal  effect  of  an  instrument  is  not  fraud  when 
the  defrauded  party  could  or  did  read  the  instrument.  So  the  fact 
that  a  signature  to  a  lease  was  obtained  by  stating  it  to  be  a  mere  re- 
ceipt in  effect  and  legal  import  did  not  invalidate  the  lease.^^^  A 
title  under  a  lease  is  not  defeated  by  fraud  which  is  admittedly  col- 
lateral to  the  demise.  A  lessor  could  not  cancel  a  demise  on  the  ground 
that  the  lessee  falsely  represented  that  he  intended  to  put  the  premises 
to  a  lawful  use  when  in  fact  he  intended  to  use  them  for  a  brothel. ^^* 
In  accordance  with  the  general  principles  of  the  rule  of  caveat  emptor, 
which  governs  the  liability  for  the  condition  of  premises,  a  tenant  is 
bound  to  inquire  as  to  the  means  of  access  to  leased  land ;  and  it  does 
not  constitute  fraud  on  the  part  of  the  landlord,  in  the  absence  of  mis- 
representations, to  lease  property  to  which  there  is  no  means  of 
access. ^^^ 

The  general  rule  that  a  fraudulent  alteration  of  an  instrument  for- 
feits the  rights  of  the  holder  does  not  apply  to  an  indenture  of  lease 
executed  in  duplicate.  An  alteration  of  the  counterpart  retained  by 
one  party  without  the  knowledge  or  consent  of  the  other  would  not 
change  the  legal  effect  of  the  instrument.  Furthermore,  it  does  not 
affect  the  rights  of  the  party  making  the  alteration  under  the  con- 
tract actually  made  by  the  parties,  for  the  lease  being  executed  in 
duplicate,  there  were  two  leases,  and  both  were  originals.  Although 
the  alteration  of  one  annulled  that,  the  lease  retained  by  the  other  was 
sufficient  to  sustain  the  contract  of  the  parties.^^^ 

VIII.     Collateral  Parol  Agreement. 

§  130.  "Contracts,  if  a  statute  does  not  intervene,  may  be  ex- 
pressed partly  in  writing  and  partly  by  parol.  If  the  writing  does 
not  purport  to  set  out  the  entire  contract,  if  it  purports  to  set  out 
only  the  part  of  the  contract  which  is  obligatory  on  the  party  making 
it,  there  is  no  just  objection  to  parol  evidence  of  the  distinct  and 
separable  parts  of  the  contract,  not  reduced  to  writing,  obligatory 

"=  Ladner    v.    Balsley,    103    Iowa  "'  Handrahan  v.  O'Regan,  45  Iowa 

674,    72    N.    W.    787;    Longshore    v.  298. 

Jack,  30  Iowa  298;  Gee  v.  Moss,  68  «3«  Jones  v.  Hoard,  59  Ark.  42,  26 

Iowa  318,  27  N.  W.  268.  S.  W.  193;    Lewis  v.  Payn,  8  Cow. 

633  Fry  V.  Day,  97  Ind.  348.  (N.  Y.)    71. 

"'*  Feret  v.  Hill,  15  C.  B.  207. 


§    131]  THE    INSTRUMENT    OF    DEMISE.  160 

upon  the  other  party."^^'^  On  the  same  principle  where  a  contract  of 
lease,  which  would  be  valid  if  by  parol,  has  been  reduced  to  writing, 
a  term  of  the  contract  which  has  been  omitted  from  the  writing  may 
be  supplied  by  parol  evidence;  as  where  the  length  of  the  holding  is 
not  stated,  and  oral  testimony  is  received  as  to  the  duration  of  the 
term  agreed  upon.  This  testimony  goes  to  supply  an  obvious  omis- 
sion.^^*  But  if  a  lease  is  complete  in  all  its  terms,  the  general  rule  is 
inflexible  that  it  cannot  be  varied  by  parol  evidence;  and  even  where 
there  is  an  obvious  omission  in  an  instrument,  parol  evidence  to  supply 
the  omission  is  generally  inadmissible  because  of  the  requirement  for 
a  written  instrument  to  satisfy  the  statute  of  frauds.  Yet  under  cer- 
tain circumstances  a  collateral  jDarol  contract  between  parties  to  a 
written  lease  may  exist  concurrently  with  the  lease.^^^  To  be  binding 
such  a  contract  must  not  come  within  the  prohibition  of  the  statute 
of  frauds;  it  must  be  supported  by  an  adequate  consideration,  and  it 
must,  furthermore,  be  sufficiently  collateral  to  the  subject-matter 
covered  in  the  written  lease  so  that  the  presumption  would  not  apply 
that  all  previous  oral  negotiations  had  been  merged  in  the  written 
instrument  as  executed.  For  the  general  rule  is  well  settled  that  a 
written  lease  having  been  executed,  it  must,  in  the  absence  of  fraud  or 
mistake,  be  deemed  to  embody  the  final  determination  of  the  parties.^*" 

§  131.  Compliance  with  statute  of  frauds. — When  an  attempt  is 
made  to  enforce  an  oral  agreement  collateral  to  a  lease,  the  first  in- 
quiry is  whether  such  agreement  is  within  the  statute  of  frauds. 
Thus,  an  agreement  by  the  landlord  to  allow  tenant  to  remove  all 
temporary  improvements  he  may  erect  might  be  valid  although  not  in 
writing,  and  for  that  reason,  the  further  question  as  to  whether  it 
would  be  merged  in  the  written  instrument  becomes  important.^*^ 
An  agreement  outside  the  lease  that  a  building  to  be  erected  shall 
be  the  personal  property  of  the  lessee  is  not  in  contradiction  of  the 
terms  of  a  written  lease  which  is  silent  on  the  topic  of  improvements. 
A  covenant  that,  at  the  termination  of  the  lease,  the  lessee  shall  de- 
liver up  the  premises  in  as  good  order  and  condition  as  they  then 

''^  Vandegrif t   v.   Abbott,    75    Ala.  v.  Dobson,  78  N.  Y.  74;  Erskine  v. 

487,  490,  per  Brickell,  C.  J.  Adeane,  L.  R.  8  Ch.  App.  756.     But 

=38  Reynolds    v.    Davison,    34    Md.  see   Naumberg  v.   Young,  44   N.   J. 

662.  Law  331. 

°=»Graffam    v.    Pierce,    143    Mass.  ""Abbott  v.  76  Land  &c.  Co.,  101 

386,  9  N.  E.  819;  Morgan  v.  Griffith,  Cal.  567,  36  Pac.  1. 

L.  R.  6  Exch.  70;  Welz  v.  Rhodius,  "^  Powell  v.  McAshan,  28  Mo.  70. 
87   Ind.  1,  44  Am.  R.   747;    Chapin 


I 


161  COLLATERAL  PAROL  AGREEMENT.  [§  133 

were  or  should  be  put  into  by  the  lessor  is  not  inconsistent  with  such 
an  agreement.  There  is  nothing  which  requires  such  an  agreement 
to  be  in  writing,  and  evidence  tending  to  prove  such  an  agreement  is 
therefore  admissible.^^^  Where  some  of  the  stipulations  in  a  contract 
are  within  the  statute  of  frauds  and  others  are  not,  if  those  which  are 
within  it  have  been  performed,  an  action  lies  upon  the  other  stipu- 
lations, if  they  are  separate. ^*^  A  promise  to  put  in  a  new  floor  in 
connection  with  a  general  agreement  to  lease  is  a  promise  in  its  nature 
separable  from  the  rest  of  the  contract,  and  a  promise -to  do  something 
after  the  execution  of  the  lease,  and  it  relates  to  something  distinct 
from  anything  contained  in  the  lease.  As  the  original  contract  was 
oral,  the  rule  that  no  oral  evidence  of  prior  or  contemporaneous  agree- 
ments can  be  received  to  add  to  or  vary  the  terms  of  a  written  con- 
tract has  not  its  usual  application.  But  as  the  performance  of  the 
oral  contract  consisted  in  part  in  the  delivery  of  written  contracts, 
if  these  contracts  contained  stipulations  relating  to  the  subject  of  the 
alleged  promise,  no  prior  or  contemporaneous  oral  promise  incon- 
sistent with  their  terms  could  be  received  in  evidence;  nor  could 
evidence  of  any  prior  or  contemporaneous  oral  promise  be  received  if 
the  written  contracts  delivered  appeared  to  contain  all  the  engage- 
ments of  the  parties  on  the  subject,  or  to  have  been  intended  as  a  com- 
plete statement  or  performance  of  the  whole  contract.  The  case  at 
bar,  however,  is  clearly  within  the  cases  where  oral  evidence  of  a  col- 
lateral separate  agreement  has  been  received.^** 

It  is  not  permissible  to  set  up  a  parol  agreement  made  the  day  a 
lease  for  a  year  was  given,  but  entered  into  after  it  had  been  executed, 
to  vary  the  terms  of  the  lease  and  show  that  the  term  was  to  continue 
till  certain  affairs  were  settled.  Such  an  agreement  is  within  the 
statute  of  frauds.^*^  But  the  principle  seems  to  be  established  that 
a  modification  by  parol  of  a  written  lease  having  less  than  a  year  to 
run  is  not  within  the  statute  of  frauds.^*'' 

§  132.  Not  only  must  the  agreement  stand  the  test  of  the  statute 
of  frauds,  but  it  must  be  collateral  to  the  lease.     Where  a  written 

"=  Ryder  v.  Faxon,  171  Mass.  206,  v.    Dooley,    119    Mass.    294;    McCor- 

50  N.  E.  631.  mick   v.    Cheevers,    124    Mass.    262; 

"'Trowbridge    v.    Wetherbee,    11  Chapin    v.    Dobson,    78    N.    Y.    74; 

Allen   (Mass.)   361;   Page  v.  Monks,  Eighmie  v.  Taylor,  98  N.  Y.  288. 

5    Gray    (Mass.)     492;    Lowman    v.  °"  Wheeler  v.  Cowan,  25  Me.   283. 

Sheets,  124  Ind.  416,  24  N.  E.  351.  ""  Doherty   v.    Doe,    18    Colo.    456, 

^"Graffam    v.    Pierce,    143    Mass.  33  Pac.  165;  Smith  v.  Devlin,  23  N. 

386,  9  N.  E.   819;    Rennell  v.   Kim-  Y.  363. 
ball,  5  Allen  (Mass.)  356,  364;  Carr 

Jones  L.  &  T.— 11 


§    132]  THE   IXSTKUMEXT    OF   DEMISE.  162 

lease  is  perfect  and  does  not  indicate  that  it  is  to  be  performed  other 
than  as  it  is  written,  all  antecedent  oral  agreements  on  the  subject  are 
merged  in  the  writing,^*^  "A  lease  is,  in  itself,  a  contract  pre- 
scribing the  rights,  duties  and  liabilities  of  the  lessor  and  lessee,  and 
when  made  pursuant  to  precedent  negotiations  is,  in  legal  contempla- 
tion, the  consummation  of  all  preliminary  propositions  and  agreements. 
It  takes  up  all  preceding  negotiations  and  gives  expression  to  the  con- 
tract of  the  parties  as  finally  consummated,  and  in  absence  of  fraud 
or  mistake,  furnishes  controlling  evidence  of  the  terms  and  conditions 
upon  which  the  property  is  demised."^*®  So  a  temporary  practice 
permitting  lessees  to  enter  upon  the  demised  premises  through  a 
lower  tenement  did  not  give  them  a  right  to  continue  so  to  enter,  for 
the  writing  was  presumed  to  express  the  entire  agreement  of  the 
parties.^*^  A  parol  agreement  to  abate  rent  in  case  of  destruction  by 
fire  could  not  be  set  up  to  modify  a  written  instrument.  A  general 
covenant  to  pay  rent  was  adequate  to  govern  the  rights  of  the  parties 
and  bound  the  lessee  to  pay  rent  even  though  the  premises  were  de- 
stroyed by  fire.^^*'  It  cannot  be  shown  by  parol  evidence  that  an  in- 
strument in  the  form  of  a  lease  was  intended  as  an  assignment  of  an 
unexpired  leasehold  interest.  Parol  evidence  is  not  admissible  to  show 
that  the  contract  was  different  from  that  stated  in  the  writing  or  was 
a  contract  to  assign  a  lease  instead  of  a  contract  to  lease  the  premises 
described.^^^  The  contract  expressed  by  the  written  instrument  is  the 
one  adopted  by  the  parties  no  matter  what  different  stipulations  they 
had  under  consideration  during  the  negotiations.  All  topics  covered 
by  the  written  lease  are  presumed  to  be  covered  fully,  and  additional 
or  contradictory  terms  under  discussion  during  the  making  of  the 
bargain  do  not  constitute  a  part  of  the  contract  as  finally  adopted. ^^^ 
Such  a  presumption  has  been  applied  to  an  oral  stipulation  in  regard 
to  a  further  term  after  the  end  of  a  lease.  The  lease  fixed  the  time 
for  the  continuation  of  the  term,  and  any  agreement  for  a  further 

"'  Kelly  v.  Chicago  &c.  R.  Co.,  93  "» Stafford  v.  Staunton,  88  Ga.  298, 

Iowa  436,   61  N.  W.  957;    Steubben  14  S.  E.  479. 

V.  Granger,  63  Mich.  306,  29  N.  W.  "'Gardner  v.  Hazelton,  121  Mass. 

716;  Stevens  v.  Haskell,  70  Me.  202;  494. 

Abbott  v.  76  Land  &c.  Co.,  101  Cal.  '^^  Snyder    v.     County    Com'rs,    8 

567,   36  Pac.  1;   Averill  v.   Sawyer,  Colo.  377,  8  Pac.  917;   Randolph  v. 

62  Conn.  560,  27  Atl.  73.  Helps,  9  Colo.  29,  10  Pac.  245;  Wil- 

"'Phillbrook  v.  Emswiler,  92  Ind.  gus  v.  Whitehead,   89   Pa.   St.   131; 

590.  Lerch  v.   Sioux  City  Times  Co.,  91 

"'Ward    V.    Robertson,    77    Iowa  Iowa  750,  60  N.  W.  611;   Brigham 

159,  41  N.  W.  603.  v.  Rogers,  17  Mass.  571. 


163  COLLATERAL  PAROL  AGREEMENT.  [§  133 

holding  was  repugnant  to  the  lease.^^^  A  factory  with  boiler  and 
engine  was  leased  without  express  covenants  as  to  the  capacity  of  the 
engine ;  it  was  held  that  there  was  no  implied  covenant  that  the  boiler 
was  capable  of  doing  a  work  for  which  the  factory  was  rented  and  oral 
testimony  was  inadmissible  to  prove  that  during  the  negotiations  the 
landlord  guaranteed  the  engine  and  boiler  were  in  thorough  repair.^^* 
The  basis  of  this  rule  of  presumption  is  that  the  oral  negotiations 
never  were  a  part  of  the  contract;  and  therefore  the  principle  would 
not  apply  in  case  the  preceding  agreement  is  in  writing.  So,  where 
an  agreement  under  seal  besides  a  covenant  for  a  lease,  contained, 
certain  independent  stipulations,  obviously  not  intended  to  be  included 
in  the  lease  but  obligatory  in  praesenti,  it  was  held  that  the  latter  were 
not  merged  in  or  superseded  by  the  lease  when  executed.  The  stipula- 
tions in  respect  to  the  lease  were  not  the  sole  purpose  of  the  contract, 
and  other  provisions  therein,  including  that  in  respect  to  the  party 
wall,  were  clearly  independent,  and  intended  to  survive  the  execution 
of  the  lease.  It  was  competent  for  the  parties  to  provide  how  the 
■  cost  of  a  party  wall  should  be  paid,  and  to  make  the  covenant  to  pay 
therefor  a  mere  personal  covenant  with  the  covenantee  and  severable 
from  his  ownership  of  the  land.  This  was  clearly  the  intention  of  the 
parties  as  gathered  from  the  language  of  the  contract.^^^ 

§  133.  On  the  question  what  agreements  are  collateral  there  is  a 
wide  divergence  of  judicial  opinion  and  no  general  rule  can  be  laid 
down  to  govern  all  cases.  Where  the  lease  is  silent  in  regard  to  re- 
pairs, the  landlord's  oral  agreement  to  put  the  premises  in  repair 
before  the  commencement  of  the  term  can  fairly  be  said  to  be  col- 
lateral to  the  lease,  as  such  an  agreement  creates  an  immediate,  not 
a  continuing  liability.  If  the  landlord  does  his  duty  it  is  functus 
ofjicio  before  the  term  begins  to  run.  It  is  widely  different  from  an 
undertaking  to  keep  the  premises  in  repair  during  the  continuance 
of  the  lease,  for  that  would  create  a  continuing  liability  and  change 
the  effect  of  the  contract  as  expressed  in  the  written  instrument.^^^ 
In  regard  to  such  a  case,  Brett,  J.,  said:  "This  agreement  was 
verbally  arrived  at  before  the  execution  of  the  lease  in  writing  and 
before  the  entry  of  the  plaintiff  pursuant  to  the  demise.     It  did  not 

^"  Keegan  v.  Kinnaire,  12  111.  App.         '"''"  Graffam    v.    Pierce,    143    Mass. 

484.  386,  9  N.  E.  819;  Mann  v.  Nunn,  43 

'"Naumberg  v.   Young,   44   N.   J.  L.  J.  C.  P.   (N.  S.)   241;   Clenighan 

Law  331.  v.  McFarland.  16  Daly  (N.  Y.)   402. 

^'^Pillsbury    v,    Morris,    54    Minn.  Compare  Weil  v.  Kahn,  16  Daly  (N. 

492,  56  N.  W.  170.  Y.)   286. 


133]  THE   INSTRUMENT    OF   DEMISE.  164 

relate  to  things  to  be  done  from  time  to  time  during  the  term,  but 
it  was  an  independent  verbal  undertaking,"^^"  But  if  the  subject  of 
repairs  is  mentioned  at  all  in  the  lease,  the  topic  of  repairing  is  no 
longer  a  collateral  niatter  and  the  presumption  would  apply  that  all 
previous  negotiations  and  stipulations  as  to  repairs  are  merged  in 
the  written  instrument  when  it  is  executed.  Thus,  where  a  lessee 
agreed  to  make  repairs  without  specifying  when  they  should  be  made, 
he  has  till  the  end  of  the  lease  to  make  them,  and  a  verbal  agreement 
to  make  the  repairs  sooner  is  inconsistent  with  the  written  contract 
and  therefore  does  not  come  within  the  exception  to  the  general  rule 
that  parol  evidence  is  admissible  to  establish  an  additional  consistent 
agreement.  The  fact  that  the  time  is  fixed  by  law  and  not  by  express 
contract  does  not  afEect  the  rule  of  admissibility.^^®  And  in  a  case 
where  a  written  lease  was  silent  on  the  question  of  assignment,  it  was 
held  that  evidence  of  a  parol  agreement  not  to  assign  was  inadmissible 
because  the  legal  implications  and  incidents  of  a  lease  should  be  re- 
garded as  written  out  and  incorporated  in  it.  If  this  were  done  there 
would  then  be  an  express  stipulation  that  the  lessee  might  assign  his 
term  to  whomsoever  he  pleased.^^^ 

But  although  an  agreement  to  make  improvements  does  not  differ 
materially  from  one  to  repair,  an  attempt  to  defend  an  action  for  rent 
under  a  written  lease  on  the  ground  of  a  breach  by  the  lessor  of  his 
collateral  parol  agreement  to  make  improvements  was  not  allowed. 
Such  a  defense  was  held  improper  because  it  sought  to  change  a  writ- 
ten contract  by  a  parol  contract  previously  made.^^"  A  similar  ques- 
tion arose  in  Connecticut  on  a  collateral  parol  promise  to  improve 
t\ie  entrance  of  a  leased  store  within  a  year.  There  had  been  a  pre- 
liminary written  agreement  for  a  lease  and  a  similar  promise  by  parol. 
When  the  time  for  the  execution  of  the  lease  arrived,  the  improve- 
ments had  not  been  made  and  the  lessee  refused  to  sign  the  lease. 
Thereupon  the  lessor  renewed  his  promise  to  make  the  improvements 
Hnd  the  lease  was  executed.  The  court  held  that  evidence  of  the  parol 
promise  could  not  be  received.  The  ground  for  their  decision  was 
that  even  if  the  parol  agreement  could  be  considered  collateral  to  the 
Lease,  it  could  not  be  considered  collateral  to  the  previous  written 
agreement.^®^     The  Illinois  court  refused  to  enforce  a  parol  agree- 

"'  Mann  v.  Nunn,  43  L.   J.  C.   P.  ""  Welshbillig  v.  Dienhart,  65  Ind. 

(N.  S.)   241.  94. 

"■^Colhoun    V.    "Wilson,    27    Gratt.  ""^Averill    v.     Sawyer.     62    Conn. 

(Va.)    639.  560,    27    Atl.    73.     Judge    Carpenter 

'**Nave  v.  Berry,  22  Ala.  382.  dissented,    stating    his    grounds   as 


1(55  COLLATERAL  PAROL  AGREEMENT.  [^  133 

ment  by  the  lessor  to  supply  water  to  the  demised  premises.  Tlie 
lease  itself  contained  covenants  on  the  part  of  the  lessor  to  repair 
fences  and  furnish  wood  for  fuel.  The  parol  agreement  as  to  water 
added  an  additional  stipulation  to  the  lease  and  was  not  in  regard  to 
a  collateral  matter.  Furthermore  such  an  agreement  was  within  the 
prohibition  of  the  statute  of  frauds  because  it  required  a  continuing 
act  and  it  did  not  alter  this  result  that  pipes  might  be  laid  which 
would  furnish  a  constant  supply  of  water  without  further  acts  on  the 
part  of  the  lessor.^*^- 

The  rule  best  suited  to  explain  the  decided  cases  in  the  United 
States  is  to  make  the  test  the  time  when  the  landlord's  undertaking  is 
to  be  performed.  The  collateral  parol  agreement  cannot  be  enforced 
when  it  is  not  to  put  the  premises  in  a  certain  condition  previous  to 
leasing  or  before  the  time  fixed  for  the  commencement  of  the  term, 
but  to  do  so  at  some  indefinite  time  during  the  term.  In  one  case  the 
alleged  parol  agreement  was  to  put  water  and  gas  into  the  leased 
building  as  soon  as  the  mains  were  completed.  The  court  said :  "The 
intention  was  to  let  the  premises,  and  they  were  let,  just  as  they  were, 
without  the  water  or  gas.  The  agreement  referred  to  something  to  " 
be  done  by  the  lessor  during  the  tenancy  in  respect  to  the  subject- 
matter  of  the  lease,  and  as  one  of  the  considerations  for  the  covenants 
in  it  on  the  part  of  the  lessee, — as  much  so  as  any  covenants  on  the 
part  of  a  lessor  usually  inserted  in  leases.  It  is  not  collateral  to  the 
matter  of  leasing  any  more  than  would  be  a  promise  or  covenant  to 
keep  in  repair.  It  is  to  be  presumed  that  the  parties  inserted  in  the 
lease  all  the  covenants  and  promises  on  both  sides  and  that  what  is 
not  in  it  was  purposely  omitted.     *     *     *"^*'^ 

follows:  "Nor  can  I  agree  that  the  such  a  contract  .  .  .  there  can 
lease  excludes  the  evidence.  The  be  no  question  about  the  considera- 
contract  had  no  reference  to  the  tion.  There  was  a  matter  in  dis- 
terms  of  the  lease,  although  it  did  pute  between  the  parties.  No  mat- 
refer  to  the  premises  leased.  It  ter  now  which  was  right.  It  is 
was  not  a  stipulation  to  be  em-  enough  for  our  present  purpose 
braced  as  a  covenant  in  the  lease,  that  the  plaintiffs  yielded  the  point 
but  was  so  far  independent  of  it  and  promised  that  if  the  defendant 
that  it  might  legally  exist  contem-  would  sign  the  lease  the  thing  that 
poraneously  with  it  and  collateral  he  contended  for  should  be  done, 
to  it.  If  the  plaintiffs  had  also  He  did  so.  The  consideration  for 
agreed  to  trade  with  the  defendant  that  promise,  and  its  validity  and 
at  the  store  to  the  amount  of  $1,000  effect,  ought,  it  seems  to  me,  to  be 
during  the  first  year,  the  two  con-  beyond  all  question." 
tracts  would  have  stood  upon  pre-  ^"^  Cooney  v.  Murray,  45  111.  App. 
cisely  the  same  footing.     Surely  it  463. 

will  not  be  contended  that  the  lease  '"'  McLean  v.  Nicol,  43  Minn.  169, 

would    exclude    parol    evidence    of  45  N.  W.  15,  per  Gilfillian,  J. 


134,  135] 


THE   INSTRUMENT   OF   DEMISE. 


1G6 


§  134.  In  England  the  courts  have  gone  a  great  ways  in  holding 
that  agreements  were  collateral  to  a  lease.  A  lease  in  one  case  re- 
served to  the  lessor  the  right  of  hunting  on  the  premises  and  bound 
the  tenant  to  use  his  best  endeavors  to  preserve  the  game.  Owing 
to  the  fact  that  the  place  was  overrun  with  rabbits  the  tenant  refused 
to  sign  the  lease  without  the  lessor's  agreement  that  they  would  be 
exterminated.  The  lessor  refused  to  put  such  an  agreement  in  the 
lease,  but  promised  faithfully  that  the  rabbits  should  be  destroyed 
and  the  tenant  signed  the  lease.  Although  it  had  been  held  that  rab- 
bits could  be  included  under  a  general  description  of  game/*'*  the 
court  held  that  the  undertaking  to  kill  them  off  was  collateral  to  the 
matters  covered  by  the  lease  and  could  be  enforced  as  a  collateral  parol 
agreement.  It  did  not  contain  any  terms  which  conflicted  with  the 
written  document.^^^ 

§  135.  A  subsequent  agreement  reducing  rent  made  during  the 
continuance  of  a  written  lease  under  seal  is  open  to  the  objections  that 
it  is  without  consideration  and  that  it  operates  to  change  a  sealed 
contract  by  parol  agreement.    Thus,  an  agreement  by  a  lessor  to  make 


''"Jeffryes  v.  Evans,  19  C.  B.  (N. 
S.)   346,  34  L.  J.   (C.  P.)   261. 

505  Morgan  v.  Griffith,  L.  R.  6 
Exch.  70;  Erskine  v.  Adeane,  L.  R. 
8  Ch.  App.  756.  These  English  de- 
cisions have  been  severely  criticized 
by  Justice  Depue  in  the  case  of 
Naumberg  v.  Young,  44  N.  J.  Law 
331.  He  said:  "Morgan  v.  Griffith 
was  decided  upon  little  considera- 
tion. The  ground  of  decision  was 
that  the  verbal  agreement  was  col- 
lateral to  the  lease,  and  did  not  af- 
)ect  the  mode  of  enjoyment  of  the 
land  demised.  Erskine  v.  Adeane, 
was  decided  by  two  equity  judges  on 
the  authority  of  Morgan  v.  Griffith, 
reversing  the  decision  of  Lord 
RomiUv,  M.  R.,  who  had  excluded 
the  evidence,  for  the  reason  that  the 
alleged  agreement  was  not  a  distinct 
agreement  but  an  alteration  of  the 
o.?iginal  terms  of  agreement,  and,  to 
be  binding,  should  have  been  insert- 
ed in  the  lease.  ...  It  must  be 
borne  in  mind  that  we  are  not  deal- 
ing with   the   question   as   to  what 


promises  and  undertakings  between 
the  parties  may,  in  themselves,  be 
considered  collateral  or  conditional 
the  one  to  the  other,  but  with  the 
salutory  rule  of  evidence  that  the 
written  agreement  shall  be  the  only 
exponent  of  the  contract,  as  finally 
concluded  between  the  parties,  and 
that  proof  by  oral  testimony  of 
what  was  said  or  done  during  the 
negotiations  shall  not  be  received, 
either  to  contradict  the  written  con- 
tract or  to  supply  terms  with  re- 
spect to  which  the  writing  is  silent. 
This  rule  of  the  common  law  may 
be  traced  back  to  a  remote  an- 
tiquity. It  is  a  rule  founded  on  ob- 
vious inconvenience  and  injustice 
that  would  result  if  matters  in  writ- 
ing, made  by  advice  and  on  consider- 
ation, and  intended  finally  to  em- 
body the  entire  agreement  between 
the  parties,  were  liable  to  be  con- 
trolled by  what  Lord  Coke  expres- 
sively calls  'the  uncertain  testimony 
of  slippery  memory.' " 


167  COLLATERAL  PAROL  AGREEMENT.  [§  135 

a  gift  of  certain  personal  property  to  the  lessee  in  return  for  prompt 
payment  of  rent  could  not  be  enforced.  It  was  not  based  on  a  suffi- 
cient consideration  to  be  a  valid  contract  and  could  not  take  effect 
as  an  executed  gift.^®"  Eeducing  the  agreement  to  writing  would 
not  have  changed  the  result.  An  indorsement  in  writing  on  a  lease 
under  seal,  without  any  new  consideration  and  not  under  seal,  is  not 
valid  to  reduce  the  amount  of  rent  due  under  the  terms  of  the  lease. 
The  agreement  not  being  under  seal  would  not  be  admitted  in  evi- 
dence to  vary  the  terms  of  an  instrument  under  seal.  It  was  a  mere 
nudum  pactum.  Payment  and  acceptance  of  the  reduced  amount 
would  merely  be  an  invalid  ratification  of  the  agreement.^^^  The 
lessors  had  a  right  to  repudiate  it  at  any  time  and  demand  the  full 
amount  of  rent  provided  for  by  the  lease;  but  in  so  far  as  the  oral 
agreement  had  been  executed,  as  to  the  payments  which  had  fallen 
due  and  had  been  paid  and  accepted  in  full,  the  lessor  had  no  further 
claim.  The  reason  of  this  rule  is  founded  on  public  policy.  It  is  not 
regarded  as  safe  or  prudent  to  permit  the  contract  of  parties  which 
has  been  carefully  reduced  to  writing  and  executed  under  seal  to  be 
modified  or  changed  by  the  testimony  of  witnesses  as  to  the  parol 
statements  or  agreements  of  the  parties.^®^  There  is,  on  the  other 
hand,  a  line  of  cases  holding  that  where  a  lessor  agrees  to  a  reduction 
of  rent  in  consideration  of  his  lessee's  continuing  to  occupy  the  prem- 
ises and  such  reduced  amount  is  received  in  full  satisfaction,  this 
makes  the  agreement  for  reduction  binding  as  to  future  rents.^"^  This 
result  is  inconsistent  with  the  decisions  in  New  York  and  Illinois. 
It  seems  to  be  rested  on  the  ground  that  the  old  contract  was  re- 
scinded by  mutual  agreement  and  that  the  modified  contract  was  sub- 
stituted in  its  place.  The  agreement  for  reduction  in  these  cases  was 
in  writing.  In  one  of  these  cases  it  was  said  that  "it  would  be  a  re- 
proach to  the  law  if  any  of  its  rules  were  so  inflexible  that  in  their 
application  the  courts  could  not  find  a  way  to  refuse  to  lend  their  aid 
to  such  an  inequitable  demand  as  that  of  the"  lessors  for  the  full 
amount  of  the  rent.^^*' 

'■"^  Bush  v.  Rawlins,  89  Ga.  117,  14  ='•'»  JafCray  v.  Greenbaum,  64  Iowa 

S.  E.  886.  492,  20  N.  W.  775;   Sargent  v.  Rob- 

""  Loach  v.  Farnum,  90  111.  368.  ertson,  17   Ind.  App.   411,  46   N.   E. 

"«McKenzle   v.    Harrison,    120    N.  925;   Ten  Eyck  v.  Sleeper,  65  Minn. 

Y.    260,    24    N.    E.    458;    Munroe    v.  413,  67  N.  W.  1026. 

Perkins,  9  Pick.    (Mass.)    298;   Lat-  ^^'^  Sargent   v.    Robertson,   17    Ind. 

timore  v.  Harsen,  14  Johns.   (N.  Y.)  App.  411,  46  N.  E.  925. 
330;  McCreery  v.  Day,  28  N.  Y.  St. 
597. 


§    136]  THE   INSTRUMENT    OF    DEMISE.  168 

That  the  acceptance  of  the  reduced  amount  in  full  satisfaction  of 
the  full  rental  is  a  complete  satisfaction  during  the  time  it  is  ac- 
cepted was  decided  by  the  Massachusetts  Supreme  Court.  The  agree- 
ment was  executed  so  no  question  could  be  raised  on  the  statute  of 
frauds,  and  the  only  point  was  the  validity  of  the  consideration.  The 
court  decided  that  the  undertaking  of  the  lessee,  in  return  for  the 
reduction,  to  put  more  money  in  his  business  and  take  in  a  new  part- 
ner was  an  ample  consideration. °^^ 

In  California  this  question  is  settled  by  a  statute  which  provides 
that  a  contract  in  writing  cannot  be  altered,  except  by  a  contract  in 
writing  or  by  an  executed  oral  agreement.^^^  And  the  same  is  true  in 
Montana.^" 

An  unexecuted  oral  agreement  between  a  lessor  and  lessee  altering 
the  terms  of  a  written  lease  would  not  be  binding  upon  a  grantee  of 
the  lessor.  At  best  su^ch  an  agreement  would  be  a  mere  personal  un- 
dertaking between  the  lessor  and  lessee.  It  would  not  become  a  part 
of  the  lease  so  as  to  run  with  the  land  and  bind  an  assignee  without 
notice,  particularly  if  the  lease  was  one  which  had  to  be  recorded  to 
be  valid."* 

§  136.  In  accordance  with  the  general  law  regarding  considera- 
tion for  a  contract,  it  has  been  soundly  stated  that  a  gratuitous  parol 
promise  to  accept  less  rent  than  that  stipulated  for  in  a  written  lease 
cannot  be  enforced,^^^  but  this  leaves  open  the  question  as  to  what 
contracts  are  to  be  considered  gratuitous  and  what  constitutes  a  valid 
consideration.  On  one  hand  it  has  been  laid  down  as  the  rule  that  un- 
less the  acts  of  the  parties  amount  to  a  surrender,  a  parol  agreement 
changing  the  amount  of  rent  and  leaving  the  lease  unchanged  in 
other  respects  is  not  binding  on  the  lessor.^^^  Different  considerations 
can  be  taken  into  account,  however,  where  the  tenant  holds  from  year 
to  year  and  not  for  a  fixed  term.  The  landlord  might  waive  any  no- 
tice to  quit,  in  which  case  the  tenant  would  have  a  right  to  vacate  the 
premises  at  the  end  of  the  year.     So  the  agreement  of  the  tenant  to 

"'Hastings  v.  Lovejoy,  140  Mass.  ■>"  Taylor  v.  Soldatl,  68  Cal.  27,  8 

261,   2   N.   E.   776.     To   same   effect  Pac.  518. 

see  Jaffray  v.  Greenbaum,  64  Iowa  "°  Wharton  v.  Anderson,  28  Minn. 

492,  20  N.  W.  775;   Doherty  v.  Doe,  301,  9  N.  W.  860;  Wheeler  v.  Baker, 

18  Colo.  456,  33  Pac.  165.  59  Iowa  86,  12  N.  W.  767. 

■"^Civ.    Code,    §    1698;    Harloe    v.  =""  Barnett  v.  Barnes.   73   111.   216, 

Lambie,  132  Cal.  133,  64  Pac.  88.  followed  in  Breher  v.  Reese,  17  111. 

"'Civ.   Code    2281;    Armington   v.  App.  545. 
Stelle,  27  Mont.  13,  69  Pac.  115. 


I 


169  COLLATERAL  PAROL  AGREEMENT.  [§  136 

remain  in  consideration  of  a  reduction  of  rent  would  be  based  on  a 
valid  consideration.^^^ 

An  oral  agreement,  subsequently  made  on  a  new  consideration,  and 
before  a  breach  of  the  contract,  in  cases  falling  within  the  rules  of 
the  common  law  and  not  within  the  statute  of  frauds  may  have  the 
effect  to  enlarge  the  time  of  performance  specified  in  the  contract,  or 
may  vary  any  of  its  terms,  or  may  waive  and  discharge  it  altogether.^^^ 
Thus,  in  a  lease  for  crop  rent  a  parol  agreement  changing  the  mode 
in  which  the  crop  was  to  be  delivered  was  valid. ^'''^  In  a  mining 
lease,  the  lessee  was  told  that  he  would  not  be  required  to  comply 
with  a  stipulation  to  take  out  ore  within  a  given  time  but  might  wait 
till  transportation  facilities  were  furnished.  This  operated  as  an 
estoppel  on  the  lessor  and  all  claiming  under  him.^*"  In  accordance 
with  these  principles  it  has  been  held  that  an  oral  agreement  not  for- 
bidden by  the  statute  of  frauds  and  based  on  a  sufficient  considera- 
tion is  valid  to  alter  the  terms  of  an  existing  written  lease.^^^  Where 
crops  on  a  leased  farm  had  been  destroyed  by  storms,  it  was  agreed 
in  return  for  the  lessee's  replanting  the  crop  that  he  should  pay  as 
rent  one-half  the  grain  produced  instead  of  a  certain  number  of 
bushels  per  acre.  This  agreement  was  held  to  be  supported  by  suffi- 
cient consideration,  though  both  parties  thought  it  less  advantageous 
to  the  landlord.^*^  Where  tenant  had  leased  a  room  in  a  building  by 
a  lease  under  seal  and  agreed  to  lease  an  adjoining  room  if  the  rent 
under  the  sealed  lease  be  reduced,  this  was  held  to  be  a  valid  con- 
sideration for  the  reduction,  even  though  the  entire  rent  was  less 
than  that  reserved  in  the  original  lease  under  seal.^^^ 

■^"Wilgus  v.  Whitehead,  89  Pa.  St.  gus  v.   Whitehead,   89   Pa.   St.   131; 

131.    In  Goldsborough  v.  Gable,  140  Emerson  v.  Slater,  22  How.  (U.  S.) 

111.     269,     a    contrary     result    was  28;     Munroe    v.    Perkins,    9    Pick, 

reached  on   facts  which   cannot  be  (Mass.)   298. 

distinguished.      Because    the    land-  "*Evers    v.     Shumaker,     57     Mo. 

lord  was  not  bound  to  waive  notice  App.  454. 

to    quit   and    could    have    held    the  '■^  Conley  v.  Johnson,  69  Ark.  513, 

tenant   for   the   rent   originally   re-  64  S,  W.  277. 

served  till  he  received  notice,  the  °"  Hastings  v.  Lovejoy,  140  Mass, 
agreement  for  reduction  of  rent  261,  2  N.  E.  776;  Jackson  v.  Patter- 
was  regarded  as  a  nudum  pactum.  son,  4  Harr.  (Del.)  534. 

"'Hastings  v.  Lovejoy,  140  Mass.  '^Raymond     v.     Krauskopf,     87 

261,  2  N.  E.  776;  Blasdell  v.  Souther,  Iowa  602,  54  N.  W.  432.     See  also, 

6  Gray  (Mass.)  149;  Barker  v.  Troy  Hill  v.  Wilson,  15  Ky,  L.  R.  814. 

&c.  R.  Co.,  27  Vt.  766;  Lawrence  v.  ''^  Horgan  v.  Krumwiede,  25  Hun 

Davey,    28    Vt.    264;    Lattimore    v.  (N.  Y.)  116. 
Harsen,  14  Johns.  (N.  Y.)  330;  Wil- 


§§    137,    137a]  THE  INSTRUMENT   OF  DEMISE.  170 

§  137.  The  execution  of  a  new  lease  to  the  same  tenant  for  the 
unexpired  term  of  an  old  lease  operates  as  a  surrender  and  extinguish- 
ment of  the  old  lease  so  that  the  rights  of  the  parties  are  to  be  gov- 
erned by  the  new  lease.^^*  The  question  whether  the  transactions  be- 
tween the  parties  amounted  to  a  surrender  of  the  old  lease  and  the 
making  of  a  new  one  is  one  of  fact.  A  tenant  desired  to  leave  during 
his  term  because  of  an  insufficient  water  supply  and  the  landlord 
agreed  to  release  him  on  payment  of  back  rent.  Before  the  time  to 
leave  arrived,  negotiations  were  begun  between  the  parties  which 
resulted  in  a  verbal  lease  on  new  conditions.  If  the  parties  actually 
entered  into  a  new  oral  lease  containing  different  conditions  from 
those  in  the  original  lease,  it  would  amount  to  a  cancellation  or  sur- 
render of  the  original  lease.  It  would  then  become  immaterial  as  to 
whether  there  was  a  new  consideration  or  not,  and  the  lessor  could  not 
be  heard  to  say  that  the  oral  agreement  was  within  the  statute  of 
frauds,  because  it  was  in  part  executed.^^^  These  principles  would 
seem  to  be  broad  enough  to  cover  a  case  where  nine  months  before 
the  end  of  a  lease,  the  lessor  agreed  to  reduce  the  rent  for  the  bal- 
ance of  the  term  and  the  lessee  agreed  to  continue  to  hold  the  prem- 
ises after  the  end  of  the  lease  and  to  give  three  months'  notice  of  his 
intention  to  quit.  The  smaller  payments  of  rent  were  accepted  for 
several  months,  but  the  tenant  vacated  at  the  end  of  the  term.  The 
court  held  that  the  new  agreement  was  not  executed  and  that  the 
lessor  could  recover  on  the  original  lease.^®^  A  parol  agreement  in  re- 
gard to  holding  over  after  the  end  of  a  term  created  by  a  sealed  lease 
is  not  open  to  the  objection  that  it  is  changing  a  sealed  instrument 
by  parol.  The  new  agreement  does  not  take  effect  till  the  sealed  lease 
has  expired. ^^^ 

IX.     Agreements  to  Lease. 

§  137a.  What  constitutes  a  valid  agreement. — Under  the  author- 
ities, to  create  a  valid  contract  of  lease,  but  few  points  of  mutual 
agreement  are  necessary:  First,  there  must  be  a  definite  agreement 
as  to  the  extent  and  bounds  of  the  property  leased;  second,  a  definite 
and  agreed  term ;  and  third,  a  definite  and  agreed  price  of  rental,  and 
the  time  and  manner  of  payment.    These  appear  to  be  the  only  essen- 

^^  Rollins  v.  Proctor,  56  Iowa  326,        ■>«'  Watson  v.  Janion,  6  Ore.  137. 

9  N.  W.  235.  ^87  West  Chicago  St.  R.  Co.  v.  Mor- 

^  Evans    v.    McKanna,  89    Iowa     rison  &c.  Co.,  160  111.  288;  43  N.  E. 

362.  56  N.  W.  527.  393. 


171  AGREEMENTS  TO  LEASE.  [§  137a 

tials.^^®  If  the  parties  are  fully  agreed,  there  is  a  binding  contract, 
notwithstanding  the  fact  that  a  formal  contract  is  to  be  prepared  and 
signed;  but  the  parties  must  be  fully  agreed  and  must  intend  the 
agreement  to  be  binding.  From  the  very  nature  of  such  an  agree- 
ment, it  is  obvious  that  the  parties  contemplate  the  execution  of  a 
more  formal  instrument  which  may  contain  additional  details  as  to 
the  terms  of  the  demise  and  the  rights  and  obligations  of  the  par- 
ties.^^^  The  mere  fact  that  a  written  lease  was  in  contemplation  does 
not  relieve  either  of  the  contracting  parties  from  the  responsibility 
of  a  contract  which  was  already  expressed  in  writing  and  a  valid  agree- 
ment for  a  lease  may  be  made  by  letters  and  telegrams.  When  one 
party  refuses  to  execute  the  lease  according  to  the  contract  thus  made, 
the  other  has  a  right  to  fall  back  on  the  written  propositions  as  origi- 
nally made.  The  absence  of  the  formal  agreement  contemplated  is 
not  material.^^"  But  the  agreement  must  contain  all  the  ordinary 
terms  in  regard  to  time,  amount  of  rent  and  so  forth  or  the  minds  of 
the  parties  do  not  meet  and  it  is  not  binding.^^^  Yet  an  undertaking 
for  a  lease  at  a  fair  rent  seems  certain  enough,  as  it  may  be  reduced 
to  certainty  by  recourse  to  extrinsic  circumstances.  The  value  of 
rents  is  not  more  variable  than  the  price  of  goods  or  labor;  and  the 
action  of  indebitatus  assumpsit  for  a,  quantum  valebant  is  founded  on 
a  contract  which  leaves  the  price  to  the  jury,  yet  it  has  never  been 
objected  that  a  contract  of  sale  or  for  work  and  labor,  in  which  the 
price  is  not  stipulated,  was  invalid  because  the  minds  of  the  parties 
did  not  meet.^^^  So  the  agreement  is  sufficient  if  it  gives  the  data 
by  which  the  amount  of  rent  may  be  found  by  calculation.  It  is  also 
sufficient  to  state  a  gross  sum  subject  to  correction  which  is  supposed 
to  represent  the  calculation.^"^    A  landlord  may  in  an  agreement  bind 

^8' Cochrane   v.   Justice   Min.    Co.,  Yet  such  was  the  decision   of  the 

16   Colo.   415,    26   Pac.   780;    Boston  court. 

Clothing   Co.  v.   Solberg,   28   Wash.  ^^  Post  v.  Davis,  7  Kan.  App.  217, 

262,  68  Pac.  715.  52  Pac.  903;   Bonnewell  v.  Jenkins, 

^«^  Boisseau   v.   Fuller,   96   Va.   45,  L.  R.  8  Ch.  Div.  70,  74. 

30  S.  E.  457.    In  this  case  the  clause,  '*^  Disbrow   v.   Wilkins,   11   N.    Y. 

"The  above  to  be  covered  by  a  regu-  App.  Div.  628,  44  N.  Y.  1115;  Stein- 

lar  lease  subject  to  approval  of  all  hardt  v.  Buel,   1   Misc.   R.    (N.  Y.) 

parties,"  was  appended  to  a  stipu-  295,  48  N.  Y.  668,  20  N.  Y.  706;  Sour- 

lation  for  a  renting.    This  prevent-  wine  v.   Truscott,  17  Hun    (N.   Y.) 

ed   the  agreement  from   taking  ef-  432.     Compare  Davis  v.  Thompson, 

feet   as    a   present   demise,    though  13  Me.  209. 

there    seems    to    be    doubt    as    to  ^^  Weaver  v.  Wood,  9  Pa.  St.  220. 

whether  it  was  intended  to  keep  it  ^^^^  McFarlane  v.  Williams,  107  111. 

from    being   a   binding   agreement.  33. 


§'    138]  THE   INSTRUMENT    OF    DEMISE.  172 

himself  to  lease  for  a  certain  time  with  an  option  to  the  lessee  to 
choose  between  two  periods.  In  such  case  the  landlord's  agreement 
to  execute  a  lease  for  one  or  more  years  on  certain  specified  terms 
binds  him  to  execute  a  lease  for  at  least  two  years  at  the  option  of  the 
lessee.^^*  But  where  the  agreement  provided  that  the  covenant  should 
be  amplified  and  extended  to  the  satisfaction  of  the  lessor  and  should 
be  such  as  were  usual  and  customary  in  leases  of  like  property  for  like 
terms  it  was  held  it  coiild  not  be  specifically  enforced  because  it  was 
too  vague.^®^ 

§  138.  Specific  performance  of  agreement. — Where  a  binding 
agreement  for  a  lease  has  been  made  and  one  party  refuses  to  perform 
his  part  of  the  contract,  the  remedy  of  the  other  party  is  not  confined 
to  his  action  at  law  for  damages.  Since  the  contract  involves  the 
transfer  of  rights  in  real  estate,  the  general  doctrine  that  equity  will 
enforce  specific  performance  in  such  cases  may  be  invoked.^^^  Selden, 
J.,  speaking  for  the  New  York  Court  of  Appeals,  said :  "If  two  par- 
ties negotiate  for  a  lease  of  certain  premises,  and  they  agree  upon  the 
terms  and  conditions  of  the  lease  and  that  a  written  lease  shall  be 
drawn  and  executed  embracing  those  terms,  this  is  not  a  lease  but  it 
is  a  contract  which,  whenever  the  statute  of  frauds  does  not  inter- 
fere to  prevent,  can  be  enforced,  and  which  the  courts  will  compel 
the  parties  specifically  to  perform.  The  books  are  so  full  of  such 
eases  that  it  can  hardly  be  necessary  to  refer  to  them  at  length."^^^ 

An  agreement  to  execute  a  lease  four  years  in  the  future  has  been 
specifically  enforced  against  the  executor  of  the  lessor  at  that  time, 
no  change  of  position  having  been  shown  by  reason  of  the  laches.^^^ 
But  if  the  person  having  contracted  for  a  lease  upon  certain  stipula- 
tions enters  upon  the  land  and  fails  to  perform  the  stipulations,  he 
cannot  compel  a  lease  to  be  made  to  him  either  by  the  original  lessor 

"'Boston  Clothing  Co.  v.  Solberg,  v.  Ashchermann,  51  Wis.  678,  8  N. 

28  Wash.  262,  68  Pac.  715.  W.    818;    Kennedy   v.    Lee,    3    Mer. 

'"'Barnes    v.    Ludington,    51    111.  441;  Fowle  v.  Freeman,  9  Ves.  351; 

App.  90.  Bonnewell  v.  Jenkins,   L.   R.   8  Ch. 

'""Cochrane   v.    Justice   Min.    Co.,  Div.    70,    74;    Crossley   v.    Maycock, 

16  Colo.  415,  26  Pac.  780;    Clark  v.  L.  R.  18  Eq.  180;  Thomas  v.  Bering, 

Clark,    49    Cal.    586;     Wharton    v.  1  Keen  729;   Gibbins  v.  Board  &c., 

Stoutenburgh,    35    N.    J.    Eq.    266;  11  Beav.  1. 

Blaney  v.   Hoke,   14   Ohio   St.   292;  '"Pratt  v.  Hudson  River  Co.,  21 

Mackey  v.  Mackey,   29  Grat.    (Va.)  N.  Y.  305. 

158 ;  Boston  Clothing  Co.  v.  Solberg,  '"« Ryder  v.   Robinson,    109    Mass. 

28  Wash.  262,  68  Pac.  715;   Seaman  67. 


! 


173  AGREEMENTS  TO  LEASE.  [§    139 

or  his  assignee.  He  who  asks  equity  himself  must  do  it.^''^  So,  where 
the  holder  of  an  agreement  for  a  lease  had  committed  such  acts  as 
would  have  amounted  to  a  forfeiture  had  a  lease  been  actually  exe- 
cuted, with  such  covenants  as  were  usually  inserted  in  lease  to  other 
tenants  of  the  same  estate,  it  was  held  he  could  not  have  the  aid  of  a 
court  of  equity  to  enforce  a  specific  performance.^"*' 

§  139.  Breach  of  agreement. — After  one  party  has  refused  for  an 
unreasonable  time  to  execute  a  lease,  according  to  a  previous  agree- 
ment, the  other  party  to  the  agreement  is  entitled  to  cancel  the  con- 
tract. A  lessor's  rights  in  this  respect  would  not  be  altered  by  the  fact 
that  the  lessee  was  in  possession  of  the  premises  under  a  previous 
lease.^"^  An  offer  to  execute  the  lease  which  is  not  accepted  relieves 
the  party  making  it  from  further  obligation.  This  holds  good,  al- 
though the  refusal  is  not  absolute  but  conditional  on  the  possibility 
of  finding  a  purchaser  for  the  leasehold  estate.''"^  In  case  the  agree- 
ment is  to  execute  a  lease  upon  the  completion  of  a  building,  the 
owner  is  under  no  obligation  to  act  until  the  building  is  completed. 
So  a  bill  in  equity  to  compel  the  specific  performance  of  an  agree- 
ment for  the  lease  of  a  building,  to  commence  at  a  future  day  on  the 
completion  of  the  building,  is  prematurely  filed  before  that  time, 
notwithstanding  notice  by  the  owner  that  he  will  not  comply  with  his 
agreement.^"^ 

Where  parties  agree  by  parol  to  execute  a  lease,  such  instrument 
would  contain  in  the  absence  of  special  agreement  only  the  covenants 
which  leases  ordinarily  contain  and  it  is  no  breach  for  one  party  to 
refuse  to  execute  an  instrument  containing  unusual  covenants.^"* 
But  by  refusing  unconditionally  to  execute  any  lease  at  all,  a  party 
may  waive  strict  compliance  with  the  terms  of  the  agreement.  Wlien 
defendants  had  made  no  objection  to  the  lease  sent  them  to  execute 
and  were  not  willing  to  accept  a  lease  in  any  form,  it  was  immaterial 
that  the  lease  differed  in  several  particulars  from  the  form  annexed 
to  the  agreement.  They  were  under  obligation  either  to  execute  the 
instrument  sent  to  them  for  their  signature  or  offer  a  valid  reason 
for  refusing  to  sign  it  and  thus  give  the  plaintiff  an  opportunity  to 
remove  the  objectionable  features.®*'^ 

="  Jones  V.  Roberts,  6  Call   (Va.)  «>=  Douglas    v.    Wilbur,    6    Phila. 

187.    Compare  Lenderking  v.  Rosen-  (Pa.)   540. 

thai,  63  Md.  28.  ""^  Friedman  v.  McAdory,  85  Ala. 

=»»  Jones    v.    Roberts,    3    H.    &    M.  61,  4  So.  835. 

(Va.)   436.  ""^Hayden  v.  Lucas,  18  Mo.  App. 

««» Griffin  v.  Knisely,  75  111.  411.  325. 

sospreeiand  v.  Ritz,  154  Mass.  257, 


§    140]  THE    INSTRUMENT    OF   DEMISE.  IT-i 

§  140.  Measure  of  damages. — Wlien  an  owner  of  premises  refuses 
to  carry  out  his  agreement  to  grant  a  leasehold  estate  of  them  and  the 
other  contracting  party  resorts  to  an  action  at  law  to  recover  com- 
pensation for  the  loss  entailed  by  this  breach  of  contract,  the  measure 
of  damages  is  the  value  of  the  contemplated  leasehold  estate  in  the 
open  market,  minus  the  rent  reserved.''"''  The  measure  of  damages  is 
the  loss  of  the  bargain,  viz. :  the  difference  between  the  rent  agreed 
in  the  accepted  proposition  and  the  actual  market  value  of  the  prem- 
ises at  the  time  the  agreement  was  made."'*^  If  the  leasehold  estate 
has  no  general  market  value,  its  value  should  be  ascertained  from 
witnesses,  whose  skill  and  experience  enables  them  to  testify  directly 
to  such  value  in  view  of  the  hazards  and  chances  of  the  business  to 
which  the  land  was  to  be  devoted.®"* 

The  same  damages  can  be  recovered  for  breach  of  a  covenant  for 
quiet  enjoyment  by  the  lessor.®""  For  a  refusal  by  a  purchaser  of 
real  estate  to  complete  his  contract,  the  seller  can  recover  as  damages 
the  difference  between  the  contract  ])Tiee  and  the  market  value.®^" 
Prospective  profits  from  the  lessee's  use  of  the  premises  to  be  de- 
mised are  too  speculative  to  be  recoverable.®^^  Loss  of  profit  is  too 
remote  a  subject  of  damage  to  be  allowed  at  all  under  any  circum- 
stances in  such  cases  as  these."^^  It  has  been  held,  however,  that  other 
damages  than  the  loss  of  the  bargain,  which  were  the  direct  and  natu- 
ral consequences  of  the  breach  of  contract  complained  of,  could  be 
recovered. ®^^  Thus,  in  an  action  for  breach  of  contract  to  lease  a  hotel, 
the  plaintiffs  were  held  to  be  entitled  to  recover  for  their  loss  of  time 
in  waiting,  and  for  their  expenses  in  coming  from  a  distant  state,  and 
for  money  paid  under  contract  to  a  clerk  whom  they  had  employed 

28     N.     E.     226;      Holdsworth     v.  Warrington,  8  C.  B.  134,  65  E.  C.  L. 

Tucker,  143  Mass.  369,  375,  9  N.  E.  134. 

764;  Brewer  v.  Winchester,  2  Allen  ^«  Rhodes   v.    Baird,    16    Ohio    St, 

(Mass.)    389;    Curtis   v.   Aspinwall,  573;   Griffin  v.  Colver,  16  N.  Y.  489; 

114  Mass.  187,  193.  Giles  v.   O'Toole,   4   Barb.    (N.   Y.) 

^  North  Chicago  St.  R.  Co.  v.  Le  261;   Newbrough  v.  Walker,  8  Grat. 

Grand  Co.,  95  111.  App.  435.  (Va.)    16. 

"""Garsed    v.    Turner,    71    Pa.    St.  '"'Buck    v.    Morrow,    2    Tex.    Civ. 

56;     Knowles    v.    Steele,    59    Minn.  App.  361,  21  S.  W.  398. 

452,  61  N.  W.  557;   Massie  v.  State  ""Kempner   v.    Heidenheimer,    65 

Nat.   Bank,   11   Tex.   Civ.   App.    280,  Tex.  591. 

32    S.   W.   797;    Hall   v.    Horton,    79  "^Rhodes   v.    Baird,    16    Ohio    St. 

Iowa  352,  44  N.  W.  569;   Alexander  573. 

V.    Bishop,   59    Iowa   572,   13   N.   W.  '"  Hanslip    v.    Padwick,    5    Exch. 

714;  Taylor  v.  Bradley,  4  Abb.  App.  615. 

Dec.  (N.  Y.)  363;  Robinson  v.  Har-  ""Adair   v.    Bogle,    20    Iowa   238, 

man,  1  Exch.  850;   Worthington  v.  244. 


175  AGREEMENTS   TO   LEASE.  [§    1-iO 

and  brought  with  them  to  aid  in  operating  the  hotel.® ^*  For  a  breach 
of  an  agreement  to  make  or  assign  a  lease,  the  intending  lessee  may 
recover  as  damages  sums  expended  by  him  in  examining  the  title 
and  in  drawing  necessary  papers. ^^^  But  such  items  of  damage  as  are 
incurred  by  the  plaintiff  by  his  own  imprudence  in  beginning  to  act 
before  he  had  ascertained  whether  the  defendant  could  or  could  not 
complete  his  contract  cannot  be  recovered. ^^®  In  a  case  where  there 
was  a  letting  on  the  shares  and  the  owner  of  the  premises  refused  to 
let  the  other  party  into  possession,  the  latter  was  allowed  to  recover 
the  value  of  his  contract,  that  is  to  say,  what  he  could  reasonably  have 
made  out  of  it,  as  his  damages.  To  say  that  the  plaintiff's  damages 
should  be  measured  by  what  he  could  have  made  on  the  farm  is  but 
another  mode  of  saying  he  was  entitled  to  the  value  of  his  bargain.®^ ^ 
It  amounts  to  the  same  thing  to  charge  that  the  plaintiff  is  entitled 
to  be  put  in  the  same  position,  pecuniarily,  as  if  the  bargain  had  been 
kept.*'^^  A  different  rule  has  been  applied  where  the  party  contract- 
ing to  grant  a  leasehold  estate  is  unable  to  do  so  because  of  an  unfore- 
seen event  for  which  he  is  not  to  blame,  as  where  a  life  interest  comes 
to  an  end.  The  damages  would  be  the  same  as  in  the  case  of  a  breach 
of  a  contract  to  sell  land,  made  without  fraud  or  misrepresentation 
and  which  the  vendor  is  unable  to  carry  out  because  he  cannot  make 
a  good  title.® ^^  In  such  case  the  vendee  cannot  recover  for  the  fan- 
cied goodness  of  the  bargain.®^" 

In  one  case  there  was  no  evidence  of  any  pecuniary  loss  from  the 
breach,  or  of  any  precise  loss  which  could  be  ascertained  in  money, 
but  the  complaint  was  that  the  plaintiff  was  disappointed  and  put  to 
trouble  and  inconvenience  in  procuring  another  house.  It  was  held 
that  a  verdict  giving  actual  damages  could  not  be  sustained.®^^ 

Where  the  owner  of  premises  brings  an  action  at  law  against  an  in- 
tended lessee  for  failure  to  carry  out  his  agreement  to  lease  premises, 

'"Hall    V.    Horton,    79    Iowa   352,  ""  McClowry  v.  Croghan,  1  Grant 

44  N.  W.  569.     To  a  similar  effect  Cas.   (Pa.)  307. 

is  Driggs  v.  Dwight,  17  Wend.   (N.  «="  Sugd.    Vendors     (7    Am.    ed.) 

Y.)   71.  Vol.    I,   p.   491;    Flureau   v.   Thorn- 

"^Hanslip    v.    Padwick,    5    Exch.  hill,    2    W.    Bl.    1078;     Walker    v. 

615;    Richardson   v.   Chasen,   10   Q.  Moore,  10  B.  &  C.  416;   Baldwin  v. 

B.  756,  59  E.  C.  L.  756.  Munn,  2  Wend.    (N.  Y.)   399;   Shan- 

"'Hanslip    v.    Padwick,    5    Exch.  non  v.  Comstock,  21  Wend.   (N.  Y.) 

615.  457,  460;  Peters  v.  McKeon,  4  Denio 

"'Hoy     v.     Gronable,     10     Casey  (N.  Y.)  546. 

(Pa.)  9;  Wolf  v.  Studebaker,  65  Pa.  ^=' Hunt    v.    D'Orval,    Dud.     Law 

St.  459.  (S.  Car.)   180. 

•"«  Garsed  v.  Turner.  71  Pa.  St.  56. 


§■    141]  THE   INSTEUMENT    OF   DEMISE.  1T6 

the  measure  of  the  damages  sustained  by  the  plaintiff  is  the  differ- 
ence between  the  contract  price  of  the  leased  premises  as  agreed  upon 
and  the  amount  that  the  plaintiff  was  able  to  realize  out  of  the  prop- 
erty after  he  had  been  notified  that  the  defendant  did  not  intend  to 
take  it."^^  However,  the  lessor  will  not  be  allowed  to  recover  except 
for  such  loss,  as  he  could  not,  by  the  use  of  reasonable  effort  and  care 
and  at  a  moderate  expense,  have  prevented.  If  by  ordinary  effort  and 
care,  and  at  a  moderate  expense,  he  could  have  cultivated  the  land, 
or  could  have  rented  it,  it  was  his  duty  to  do  so.®^^  In  determining 
the  difference  between  the  market  value  of  the  lease  and  the  agreed 
rent,  installments  of  rent  not  due  at  the  time  of  the  suit  must  be  dis- 
counted at  the  legal  rate.*'^^ 

§  141.  Lease  or  agreement  to  lease. — "The  general  features  of  dif- 
ference between  a  lease  or  present  demise  and  a  contract  for  a  future 
letting  are  well  understood,  though  the  line  of  distinction  is  often 
too  difficult  to  trace  in  its  application  to  particular  cases;  and  there 
is  much  conflict  in  the  authorities.  The  question  has  generally  arisen, 
as  one  purely  of  law  upon  the  construction  of  the  language  of  the 
written  instrument,  the  distinction  being  often  made  to  turn  upon 
very  slight  differences  in  phraseology,  though  it  is  always  a  question 
of  the  intention  of  the  parties.'"'^^  It  is  a  cardinal  point  in  deter- 
mining whether  contracts  between  parties  in  regard  to  letting  are 
leases  or  agreements  for  leases  to  seek  the  intention  of  the  parties  from 
the  whole  instrument."-*'  Much  discussion  has  arisen  in  the  English 
courts,  as  to  what  is  a  lease  and  what  is  only  an  agreement  for  a  lease, 
because  if  it  be  a  lease,  then  a  stamp  of  higher  denomination  is  re- 
quired. And  Lord  Ellenborough  says  that  the  rule  to  be  collected 
from  all  the  cases  is,  that  the  intention  of  the  parties,  as  declared  hy 
the  words  of  the  instrument,  must  govern  construction.^^''  The  ques- 
tion is  one  of  construction  to  be  determined  from  what  appears  to  be 
the  paramount  intention  of  the  parties  as  collected  from  the  whole 

«='Post  V.  Davis,  7  Kan.  App.  217,  (N.   Y.)    74,   per   Spencer,   J.;    Col- 

52   Pac.   903;    Cleveland   v.   Bryant,  clough  v.  Carpeles,  89  Wis.  239,  61 

16   S.   Car.    634;    Bacon   v.    Combes,  N.  W.  836. 
65  N.  Y.  S.  510.  ""Poole   v.   Bently,   12   East   168, 

*"  Stoker    v.    Wilson,    3    Willson  Lord  Ellenborough;   Stanley  v.  Ho- 

Civ.  Cas.  (Tex.),  §  10.  tel   Corporation,   13   Me.    51;    Weed 

""Massie  v.   State  Nat.   Bank,   11  v.  Lindsay,  88  Ga.  686,  15  S.  E.  836; 

Tex.  Civ.  App.  280,  32  S.  W.  797.  Jackson     v.     Delacroix,     2     Wend. 

''=' Tillman  V.  Fuller,  13  Mich.  113,  433.       South     Dakota:      Grigsby    v. 

119,  per  Christiancy,  J.  Western  &c.   Tel.   Co.,  5  S.  D.  561, 

o^"  Thornton    v.    Payne,    5    Johns.  59  N.  W.  734. 


177  AGREEMENTS   TO   LEASE,  [g    14:2 

tenor  of  the  instrument.^-'  Defects  in  the  form  of  the  instrument 
alone  are  not  sufficient  to  change  what  would  otherwise  he  a  lease  into 
an  agreement  for  one.  In  holding  an  instrument  defective  in  form 
alone  was  a  lease,  the  Connecticut  court  said:  "Here  are  all  the  ele- 
ments of  a  valid  lease,  common  parties,  a  subject-matter  particularly 
described,  a  definite  term,  its  beginning  and  ending  fixed,  and  the 
amount  of  rent  with  terms  of  payment.  The  instrument  is  deficient 
only  in  matter  of  form.'"^^^ 

Although  the  line  separating  present  leases  from  agreements  for  a 
future  demise  is  often  difficult  to  distinguish,  there  is  a  marked 
difference  in  the  rights  of  the  parties  under  the  two  contracts.  By  a 
lease  the  lessee  acquires  an  estate  in  the  land,  by  an  agreement  for  a 
lease  he  merely  acquires  an  executory  right  to  have  the  owner  convey 
him  an  estate  for  breach  of  which  he  has  a  claim  for  damages  or  a 
possible  right  to  specific  performance  in  equity.  It  constitutes  an 
aml;)iguity  for  which  a  complaint  will  be  bad  on  demurrer  to  allege 
an  agreement  for  a  lease  and  to  state  contracts  which  constitute  an 
actual  lease.^^'' 

§  142.  The  test  of  intention  in  regard  to  making  a  lease  or  an 
agreement  to  lease  is  whether  the  agreement  leaves  anything  incom- 
plete. If  it  does  not,  it  may  operate  as  a  present  demise."-''^  The  law 
seems  to  be  settled  that  when  an  agreement  leaves  nothing  to  be  done 
and  gives  the  lessee  an  immediate  right  to  possession,  it  is  a  lease, 
passing  a  present  estate  in  the  land.*'^^  If  the  words  used  imply  an 
immediate  demise,  with  no  stipvilation  for  a  further  lease,  the  term, 
rent  and  manner  of  occupation  being  all  explicitly  stated,  it  confers 
all  the  rights  of  a  lessee  upon  the  contracting  party.  In  every  case 
where  an  agreement  has  been  held  not  to  operate  by  passing  an  in- 

*"*  Connecticut:     Buell  v.   Cook,   4  ment  purported  to  be  a  lease  and 

Conn.  238,  242.    English:    Goodtitle  contained  a  description  of  the  prem- 

V.  Way,  1  Term  R.  735;  Roe  v.  Ash-  Ises   occupied    and    fixed    the    rent, 

burner,    5    Term    R.    163.     Illinois:  time    of    payment    and    length    of 

Griffin  v.  Knisely,  75  111.  411.  Massa-  term,  it  constituted  a  lease.     Coyne 

chusetts:      Bacon    v.     Bowdoin,     22  v.  Feiner,  16  N.  Y.  S.  203,  41  N.  Y. 

Pick.  401;   Kabley  v.  Worcester  &c.  St.  93. 

Co.,  102  Mass.  392.   Missouri:    West-  "^  Crow  v.  Hildreth,  39  Cal.  618. 

ern  &c.  Co.  v.  Gannon,  50  Mo.  App.  ""Doe  v.  Ries,  8  Bing.  178. 

642.    New  York:    Hallett  v.  Wylie,  3  «==  Staniforth  v.  Fox,  7  Bing.  590; 

Johns.    44;    Thornton    v.    Payne,    5  Roe  v.  Ashburner,  5  Term  R.  163; 

Johns.  74.  Jenkins   v.   Eldredge,    3    Story    325, 

«=»  Johnson  v.  Phoenix  &c.  Ins.  Co.,  13  Fed.  Cas.  No.  7268. 
46  Conn.  92,  102.    Where  an  instru- 

JoNES  L.  &  T.— 12 


§    143]  THE    IXSTRUMEXT    OF   DEMISE.  178 

terest  but  to  rest  in  contract,  there  has  been  either  an  express  agree- 
ment for  a  further  lease,  or  construing  the  agreement  to  be  a  lease 
in  praesenti  would  work  a  forfeiture,  or  the  terms  have  not  been  fully 
settled,  or  something  further  was  to  be  done.®^^  On  the  other  hand 
if  the  contracting  parties  intend  to  do  something  further  after  mak- 
ing an  agreement  for  a  lease,  such  as  executing  a  formal  lease  with 
covenants,  the  earlier  instrument  is  not  a  lease  but  merely  an  agree- 
ment for  a  lease.^^*  As  long  as  the  parties  do  not  consider  the  matter 
finished,  it  is  not  a  completed  lease."^^  Where  there  was  a  binding 
contract  sufficient  to  satisfy  the  statute  of  frauds,  the  addition  of  the 
words  "Notes  and  papers  to  be  drawn  as  soon  as  convenient,"  showed 
that  the  parties  considered  the  transaction  as  incomplete  and  the  writ- 
ing was  only  an  executory  agreement  for  a  lease.*'^'*  However,  where 
there  are  apt  words  of  present  demise  and  the  tenant  goes  into  pos- 
session and  occupies  thereunder,  an  instrument  will  be  construed  as  a 
present  demise  rather  than  as  an  agreement  for  a  lease,  even  though 
it  contains  a  covenant  for  the  execution  of  a  more  perfect  and  formal 
lease.^^^ 

§  143.  Where  there  is  no  covenant  for  executing  any  further  in- 
strument, an  agreement  will  take  effect  as  a  present  lease,  even 
though  the  term  is  not  to  beg^n  until  a  future  time.*'^^  In  many 
cases  where  there  were  apt  words  for  a  present  demise  and  the  term 
was  to  commence  in  futuro  at  a  day  certain,  it  has  been  held  that  the 
parties  intended  to  make  a  lease  to  begin  in  the  future.®^^  An  in- 
strument employing  the  language  ''hereby  leases  and  demises"  in 

"^  Thornton    v.    Payne,    5    Johns.         ®''  People   v.   Kelsey,   14  Abb.   Pr. 

(N.  Y.)    74;    Colclough  v.  Carpeles,  (N.  Y.)   372,  38  Barb.   (N.  Y.)    269; 

89  Wis.  239,  61  N.  W.  836.  Jenkins  v.   Eldredge,   3   Story   325, 

"^'^  Goodtitle   v.   Way,   1    Term   R.  13   Fed.   Cas.    No.   7268;    Hallett  v. 

735;   Roe  v.  Ashburner,  5  Term  R.  Wylie,  3  Johns.    (N.  Y.)   44,  3  Am. 

163;  Doe  v.  Smith,  6  East  530;  Mor-  Dec.  457;  Boisseau  v.  Fuller,  96  Va. 

gan  v.  Bissell,  3  Taunt.  65.  45,  30  S.  E.  457. 

'^  Harrison    v.    Parmer,    76    Ala.         ^^  Bacon    v.     Bowdoin,    22    Pick. 

157;    Buell  v.   Cook,   4    Conn.    238;  (Mass.)    401;    Kabley  v.  Worcester 

Martin  v.  Davis,  96  Iowa  718,  65  N.  &c.   Co.,   102   Mass.   392;    People   v, 

W.  1001.  Kelsey,  14  Abb.  Pr.   (N.  Y.)   372,  38 

''^  Harrison    v.    Parmer,    76    Ala.  Barb.      (N.      Y.)      269;      Trull     v. 

157.  Granger,    8    N.    Y.    115;     Becar    v. 

*^^  Jackson      v.      Kisselbrack,      10  Flues,  64  N.  Y.  518,  520;  Colclough 

Johns.  (N.  Y.)  336,  6  Am.  Dec.  341;  v.  Carpeles,  89  Wis.  239,  61  N.  W. 

Jackson  v.  Van  Hoesen,  4  Cow.   (N.  836;  Chapman  v.  Bluck,  4  Bing.  N. 

Y.)    325;    Jourgensen  v.  Fraitel,  20  C.  187,  196. 
N.  Y.  S.  33.  47  N.  Y.  St.  413. 


179  AGEEEMENTS  TO  LEASE.  [§  143 

the  present  tense  provided  that  the  term  was  to  begin  in  two  months 
and  last  for  ten  years,  and  thereby  created  a  present  lease,  it  being 
no  objection  that  the  term  was  to  begin  in  the  fiitnre.*^*"  If  a  con- 
tract of  letting  is  evidenced  by  letters  in  which  the  building,  the  com- 
mencement and  length  of  the  term  and  the  rate  of  rent  are  distinctly 
described,  so  that  no  additional  document  is  necessary  to  express  the 
intent  of  the  parties  and  there  is  no  indication  in  the  writing  or  in 
the  conduct  of  the  parties  that  any  other  or  more  formal  instrument 
is  intended  to  be  made,  there  can  be  no  doubt  that  the  parties  in- 
tended what  the  language  clearly  imports — namely,  a  present  demise 
to  commence  in  the  future.*'*^  If  there  is  anything  conditional  in 
regard  to  the  state  of  the  premises,  such  condition  can  be  satisfied 
by  performance  before  the  day  appointed  for  the  commencement  of 
the  new  term.^*-  In  a  case  strengthened  by  a  formal  instrument  with 
words  of  present  demise,  the  New  York  Supreme  Court  reached  the 
opposite  result  and  held  the  instrument  under  consideration  to  be 
a  mere  agreement  for  a  future  leasing.*'*^  The  decision  seems  to  rest 
on  a  misconception  of  the  rule  that  to  be  a  present  demise  the  doing 
of  nothing  further  shall  be  contemplated,  which  refers  to  the  execu- 
tion of  other  instruments  and  not  to  alterations  or  changes  in  the 
premises  themselves.  So  there  is  sound  reason  for  a  decision  that  an 
instrument,  with  words  of  present  demise,  complete  in  itself  and 
looking  to  no  further  deeds,  took  effect  as  a  present  demise,  although 
the  commencement  of  the  term  was  not  definitely  fixed,  and  the  lessor 
had  no  title  to  the  premises  when  the  contract  was  executed  but  merely 
an  agreement  for  a  future  formal  lease  to  be  executed  when  a  build- 
ing was  finished.  The  instrument  was  complete  in  itself;  it  fixed 
the  term,  rent  and  duty  to  repair ;  clearly  no  further  lease  was  in  the 
contemplation  of  the  parties.®**  It  furnishes  no  objection  that  the 
term  is  to  commence  upon  the  completion  of  a  building,*'*^ 

But  where  the  owner  of  land  agreed  that  a  person  should  have  a 
term  in  it  beginning  thirty  days  after  owner's  death  and  covenanted 
that  he  would  make  a  provision  in  his  will  to  carry  out  this  agree- 

•^Weed     V.     Crocker,     13     Gray  «^^  Jackson  v.  Delacroix,  2  Wend. 

(Mass.)   219.  (N.  Y.)  433. 

^  Shaw  V.  Farnsworth,  108  Mass.  "*  Western  &c.  Co.  v.  Gannon,  50 

357;  Chapman  v.  Bluck,  5  Scott  515,  Mo.  App.   642.     See  also,   Steinfleld 

531.  V.  Wilcox,  56  N.  Y.  S.  217.  26  Misc. 

^  Shaw  V.  Farnsworth,  108  Mass.  R.  401. 

357;    Bacon    v.    Bowdoin,    22    Pick.  "=  Colclough  v.   Carpeles,  89  Wis. 

(Mass.)   401.  239,  61  N.  W.  836. 


§§    144,    145]  THE    IXSTRUMENT    OF   DEMISE,  .  180 

ment,  it  was  held  that  this  was  an  agreement  to  lease  merely  and  not 
a  lease.''**' 

§  144.  The  words  "agree  to  let"  have  for  a  long"  time  been  held  to 
be  apt  words  of  present  demise.'^*"  The  form  of  expression  "we  agree 
to  rent  or  lease"  is  not  indicative  of  intention  not  to  make  a  present 
demise  but  may  take  effect  as  a  present  demise,  and  does  not  neces- 
sarily import  that  a  lease  is  intended  to  be  given  at  a  future  day.  On 
the  contrary  these  words  may  take  effect  as  a  present  demise,  and  the 
words  "agree  to  let"  have  been  held  to  mean  exactly  the  same  thing 
as  the  word  "let,"  unless  there  be  something  in  the  instrumeiit  to 
show  that  a  present  demise  could  not  have  been  in  the  contemplation 
of  the  parties.''** 

A  lease  for  a  year  containing  a  clause  "we  further  agree  to  lease  to 
said  tenant  said  premises  for  as  long  as  he  wishes  to  occupy  them," 
was  held  to  operate  as  a  lease  and  not  merely  as  an  agreement  for  a 
lease,  and  the  lease  was  valid  in  spite  of  the  indefinite  period  for  its 
continuance."*^ 

§  145.  Agreements  subject  to  a  condition. — Wliere  an  agreement 
for  leasing  a  building,  in  words  sufficient  to  import  a  present  demise, 
contained  a  proviso  that  a  majority  of  the  county  court  should  agree 
to  it,  it  was  only  an  agreement  for  a  lease  on  a  condition  precedent. "^^ 
But  where  a  tenant  at  will  agreed  to  take  a  house  for  three  years 
from  a  certain  future  date,  if  the  owner  would  put  in  a  new  furnace, 
acceptance  by  the  owner  created  a  present  demise  and  not  a  mere 
agreement  to  execute  a  lease  at  a  future  time.^''^  An  agreement  to 
make  a  lease  contained  the  clause  "The  $100  to  be  paid  on  signing 
of  said  lease  is  to  apply  on  -first  month's  rent,"  but  there  was  no  other 
reference  to  the  $100  in  the  agreement.  In  the  absence  of  other 
stipulations  the  making  or  tendering  of  payment  was  not  a  condition 
precedent  to  the  right  of  the  lessee  to  enforce  damages  for  the  non- 
execution  of  the  lease.®^^ 

•^  Weld  V.  Traip,  14  Gray  (Mass.)  ***Kabley    v.    Worcester    &c.    Co., 

330.  102  Mass.  392;   Doe  v.  Benjamin,  9 

•^^  Western  &c.  Co.  v.  Gannon,  50  A.  &  E.  644. 

Mo.  App.  642;    Averill  v.  Taylor,  8  "» Holley  v.  Young,  66  Me.  520. 

N.  Y.  44;   Kabley  v.  Worcester  &c.  "^"Buell  v.  Cook,  4  Conn.  238. 

Co.,   102   Mass.   392;    Doe  v.   Benja-  "=' Shaw  v.  Farnsworth,  108  Mass. 

min,   9   A.    &  E.    644;    Chapman   v.  357. 
Bluck,  4  Bing.  N.  C.  187. 


181  AGREEMENTS  TO  LEASE.  [§  146 

i?  146.  Effect  of  possession  by  lessee. — An  instrument  which  is  in 
otlier  respects  a  lease  is  not  changed  into  a  mere  agreement  for  a 
lease  because  the  lessee  refuses  to  accept  possession.^^^  It  is  equally 
true  that  one  having  a  landowner's  agreement  to  lease  does  not  ob- 
tain an  estate  in  the  land  by  going  into  possession.  He  would  be  a 
mere  licensee.''^'*  So  where  a  person  was  in  possession  as  underten- 
ant and  made  an  executory  agreement  for  a  lease  from  the  original 
lessor  after  the  expiration  of  his  existing  term,  this  agreement  did 
not  entitle  him  to  defend  against  an  action  based  on  a  dispossessory 
warrant. "^^  Furthermore,  entry  into  possession  under  an  agreement 
for  a  lease  would  not  give  the  tenant  such  an  estate  in  the  land  that 
he  could  recover  damages  when  the  premises  were  taken  on  eminent 
domain.  The  tenant  in  the  case  so  holding  had  been  ejected  by  the 
landlord  before  the  proceedings  to  condemn  the  land  were  instituted. 
So  long  as  he  remained  in  possession,  the  agreement  might  be  suffi- 
cient to  protect  him  and  to  define  the  conditions  of  his  occupancy. 
In  equity  he  would  be  protected  against  ejection  and  might  compel 
the  execution  of  a  lease  which  would  confer  on  him  the  legal  estate 
for  the  stipulated  term.  But  he  had  not  acquired  the  legal  estate 
when  he  was  virtually  ejected  from  the  premises,  and  he  had  ceased 
to  be  a  tenant  thereof  before  damages  from  the  city  became  payable 
to  anybody.  His  remedy  would  be  an  action  at  law  against  the  land- 
owner for  breach  of  the  executory  contract.*'^"  "Where  parties  enter 
under  a  mere  agreement  for  a  future  lease,"  explains  Justice  Little- 
dale,  "they  are  tenants  at  will,  and  if  rent  is  paid  under  the  agree- 
ment they  become  tenants  from  year  to  year,  determinable  on  the 
execution  of  the  lease  contracted  for,  that  being  the  primary  con- 
tract.""^^  Thus,  in  a  case  where  one  party  entered  into  possession  of 
premises  under  an  agreement  to  take  a  lease  of  them  but  the  parties 
could  not  agree  upon  the  terms  of  the  lease  and  defendant  refused  to 
vacate  after  notice  to  quit,  he  was  liable  to  the  owner  in  an  action  of 
trespass  after  the  latter  had  resumed  possession.*^^* 

But  the  tenant's  possession  is  always  available  to  show  that  there 
was   an   actual  demise   rather  than   a  contract   for   future   leasing. 

"=*=  Hall  v.  Horton,  79  Iowa  352,  44  "'"  McGratli  v.  City  of  Boston,  103 

N.   W.   569.  Mass.  369. 

"^'Rice   V.    Brown,   81    Me.    56,   16  ""  Hamerton  v.   Stead,   3   B.   &   C. 

Atl.  334.  478,   483,   per  Littledale,   J.,   quoted 

"^^  Potter  V.  Mercer,   53   Cal.   667;  in  Weed  v.  Lindsay,  88  Ga.  686,  15 

Pulse  V.  Hamer,  8  Ore.  251.  S.  E.  836. 

"''Gibson  v.  Needham,  96  Ga.  172,  "'"Welch  v.   Winterburn,   25   Hun 

22  S.  E.  702.  (N.  Y.)   437. 


§    147]  THE    IXSTRUMEXT    OF    DEMISE.  182 

Transfer  of  possession  is  evidence  throwing  light  on  the  intention 
of  the  parties  when  that  is  left  obscure  by  the  wording  of  the  instru- 
ment.*'^® Where  the  intention  of  the  parties  is  not  clearly  expressed, 
the  transfer  of  possession  under  the  agreement  will  be  a  circumstance 
tending  to  show  it  was  intended  as  a  lease  in  praesenti.^^^  An  agree- 
ment in  one  case  provided  that  premises  should  be  survcA-ed  and  that 
then  one  party  should  take  a  lease.  It  was  held  after  long  possession 
and  payment  of  rent  that  this  took  effect  as  a  present  demise  rather 
than  as  an  agreement  for  a  future  lease.*'*'^  Moreover  it  has  been 
held  that  an  entry  into  possession  under  a  mere  agreement  to  lease 
may  be  sufficient  proof  of  a  waiver  by  the  parties  of  the  original  in- 
tention to  execute  a  formal  lease.®*'-  For  where  an  agreement  for  a 
lease  contained  a  provision  that  formal  leases  should  be  executed  on 
certain  blank  forms  for  leases  in  use  in  leasing  rooms  in  a  certain 
building  before  the  lessee  went  into  occupation,  it  was  held  competent 
for  the  parties  to  waive  this  provision,  in  which  case  the  agreement 
constituted  an  actual  demise  of  the  premises  and  the  provisions  in 
the  blank  form  became  incorporated  in  the  instrument  by  reference.®®^ 

X.     Statute  of  Frauds. 

§  147.  The  English  Act. — In  all  countries  where  the  common-law 
system  of  jurisprudence  prevails,  the  statute  passed  in  the  reign  of 
Charles  II,  commonly  known  as  the  Statute  of  Frauds,  furnishes  the 
basis  for  subsequent  enactments  requiring  that  certain  contracts 
and  agreements  must  he  proved  by  written  instruments.  Even  where 
the  exact  words  of  the  original  act  are  not  used,  as  is  frequently  the 
case,  the  construction  of  the  statute  of  Charles  II  by  English  courts 
is  an  important  aid  in  construing  other  statutes  on  the  same 
topic.  The  parts  of  the  English  act,  applicable  to  the  making  of 
leases,  provide  in  effect  that  parol  transfers  of  real  estate,  without 

*=' Billings    V.    Canney,    57    Mich.  ^^^  Jackson     v.      Kisselbrack,      10 

425,  24  N.  W.  159;    Shaw  v.  Farns-  Johns.   (N.  Y.)  336,  6  Am.  Dec.  341. 

worth.  108  Mass.  357.  ""^  Culton    v.    Gilchrist,    92    Iowa 

««°  Chapman  v.  Towner,  6  M.  &  W.  718,  61  N.  W.  384;   Neppach  v.  Jor- 

100;  Jones  v.  Reynolds,  1  Q.  B.  506,  dan,  15  Ore.  308,  14  Pac.  353.    Com- 

41  E.  C.  L.  646;   Doe  v.  Benjamin,  pare   Cheney  v.   Newberry,   67   Cal. 

1  Perry  &  D.  440;    Bacon  v.  Bow-  125,  7  Pac.  444. 

doin,  22  Pick.  (Mass.)  401;  Jenkins  ^^  People  v.  St.  Nicholas  Bank,  3 

V.   Eldredge,   3    Story    325,    13    Fed.  N.  Y.  App.  Div.  544,  74  N.  Y.  St.  35, 

Cas.  No.  7268;   People  v.  Gillis.   24  38  N.  Y.  S.  379. 
Wend.  (N.  Y.)  201;  Jackson  v.  Dela- 
croix, 2  Wend.   (N.  Y.)   430. 


183  STATUTE  OF  FRAUDS.  [§  l-iS 

regard  to  the  consideration  paid,  shall  have  the  effect  of  creating  estates 
at  will  merely.  Then  follows  an  exception  to  the  above  provision  in 
section  (2)  in  favor  of  all  leases  not  exceeding  the  term  of  three 
years  from  the  making  thereof,  where  the  rent  reserved  amounts  to 
two-thirds  part  at  least  of  the  full  impro^'ed  value  of  the  thing  de- 
mised.*"'* It  is  further  provided  in  section  (4)  of  the  English  act 
that  no  action  shall  be  brought  for  the  sale  of  any  interest  in  land, 
or  upon  any  agreement  that  it  is  not  to  be  performed  within  one 
year  from  the  making  thereof  unless  the  agreement  be  put  in  writing 
and  duly  signed.  These  sections  soon  received  judicial  construction 
and  leases  not  exceeding  three  years  have  always  been  considered  as 
excepted  by  the  second  section  from  the  operation  of  the  fourth 
*  *  *  A  parol  lease  warranted  by  the  second  section  may  be  as 
special  in  its  term  as  a  written  one.^*'^  The  clause  regarding  parol 
agreements  not  to  be  performed  within  the  space  of  one  year  does  not 
apply  to  agreements  regarding  the  sale  or  leasing  of  land,  although 
in  terms  broad  enough  to  cover  such  contracts.  But  from  the  group- 
ing of  the  sections  it  is  apparent  that  this  section  applies  only  to  con- 
tracts regarding  personal  property,  and  agreements  for  work  and 
labor.®^*'  The  effect  of  this  statute,  so  far  as  it  applies  to  parol  leases 
not  exceeding  three  years,  is  that  the  leases  are  valid,  and  that  what- 
ever remedy  may  be  had  in  their  character  of  leases  may  be  resorted 
to,  but  they  do  not  confer  a  right  to  sue  the  lessee  for  damages  for  not 
entering  on  or  occupying  the  demised  premises."®^  As  long  as  the 
parol  lease  is  executory  no  action  will  lie  on  it ;  but  after  entry  into 
possession  an  action  will  lie,  if  the  lease  be  for  three  years  or  less, 
and  all  its  provisions  are  as  valid  and  binding  as  if  it  had  been  reduced 
to  writing.^^® 

§  148.  Form  of  statutes  for  the  prevention  of  frauds  and  perjuries 
in  the  United  States. — In  the  older  states  of  this  country,  the  English 
mode  of  expression  is  followed  denying  to  parol  transfers  a  greater 
validity  than  leases  at  will,  while  the  exception  in  favor  of  short 
term  parol  leases  is  either  lengthened,  shortened,  or  omitted  alto- 
gether. Another  common  form  for  such  statutes,  more  usual  in  the 
west,  is  a  provision  that  no  action  shall  be  brought  on  a  contract  "for 
the  sale  of  land  or  for  a  leasing  thereof  for  a  longer  period  than  one 

'8*29  Car.  2  c.  3.  Edge  v.    Strafford,   1   C.   &  J.   391; 

«°5  Bolton   v.    Tomlin,    5    A.    &   B.  Ryley  v.  Hkks,  1  Str.  651. 

««« Hollis  v.  Edwards,  1  Vern.  159.  "'^  Bolton   v.    Tomlin,    5    A.    &    E. 

856,  864,  per  Denman,  C.  J.  856. 
«"Inman   v.   Stamp,  1   Stark.   10; 


§■  i-is] 


THE    INSTRUMENT    OF    DEMISE. 


184 


year/'  unless  the  same  is  in  writing  subscril^ed  by  the  party  to  bo 
bound  or  his  duly  authorized  agent.^^^  The  effect  of  the  statute  is 
the  same  whether  it  is  worded  that  a  parol  lease  creates  merely  an 
estate  at  will,  or  that  no  action  shall  be  brought  on  a  parol  lease,  or 
that  a  parol  lease  shall  be  void.  These  differences  in  phraseology  are 
not  material.  Thus,  in  a  jurisdiction  where  the  statute  read  that 
every  parol  contract  for  a  leasing  for  a  longer  period  than  one  year 
shall  be  void,  it  was  urged  that  a  tenancy  from  year  to  year  was  not 
created  by  entrance  and  occupation  under  a  parol  lease  for  two  years. 
The  court  said :  "It  will  be  observed  that  these  provisions  in  regard 
to  parol  leases  differ  somewhat  from  the  terms  of  the  English  statute 
of  frauds,  and  from  the  statute  as  adopted  in  some  of  our  sister  states, 
which  do  not  make  verbal  leases  exceeding  the  prescribed  period  void, 
but  allow  them  the  effects  of  estates  at  will.'^'°  But  the  counsel  does 
not  contend  even  for  such  a  literal  and  rigid  construction  of  the  above 
provisions  of  our  statute  as  would  make  this  parol  lease  for  two  years 
absolutely  void — more  especially  when  coupled  with  the  facts  of  the 
lessee's  entry  under  it,  his  holding  possession  of  the  premises  for  about 
a  year  and  eight  months  and  his  payment  of  the  stipulated  rent  for  a 
year  and  a  half.  It  surely  would  be  difficult  to  find  a  case  where  the 
facts  would  more  fully  warrant  the  conclusion  that  a  tenancy  from 
vear  to  vear  was  created  than  the  one  before  us,""^     No  recovery 


669  rpj^g  exception  in  favor  of  parol 
leases  is  put  at  one  year  in  Ala- 
bama, Arkansas,  Alaska,  Arizona, 
California,  Colorado,  Connecticut, 
Georgia,  Idaho,  Illinois,  Iowa,  Kan- 
sas, Kentucky,  Michigan,  Minnesota, 
Mississippi,  Montana,  Nebraska, 
Nevada,  New  York,  North  Dakota, 
Oklahoma,  Oregon,  Rhode  Island, 
South  Carolina,  South  Dakota,  Ten- 
nessee, Texas,  Utah,  West  Virginia, 
Wisconsin,  Wyoming.  At  two  years 
in  Florida.  At  three  years  in  In- 
diana, New  Jersey,  North  Carolina, 
Pennsylvania.  At  five  years  in  Vir- 
ginia. At  seven  years  in  Maryland. 
In  Delaware  a  contract  for  renting 
for  a  year,  though  respecting  an 
interest  in  lands,  is  excepted  by 
landlord  and  tenant  act,  and  may 
be  proved  by  parol.    Himesworth  v. 


Edwards,  5  Harr.  (Del.)  376;  In 
Louisana  leases  may  be  made  either 
by  written  or  verbal  contract.  Mer- 
ricks  Rev.  Civ.  Code  1901,  Art. 
2683.  But  if  the  lease  has  not  been 
reduced  to  writing  a  purchaser  of 
the  reversion  cannot  be  compelled 
to  give  any  indemnification  for 
evicting  the  lessee.     Ibid  Art.  2741. 

""Bolton  V.  Tomlin,  5  A.  &  E. 
856;  Ellis  v.  Paige,  1  Pick.  (Mass.) 
43;  Davis  v.  Thompson,  13  Me.  209, 
214;  Barlow  v.  Wainwright,  22  Vt. 
88;  Browne  on  Frauds,  ch.  3;  Doe 
v.  Bell  and  Clayton  v.  Blakey,  2 
Smith's  Lead.  Cas.  119,  127. 

"1  Koplitz  v.  Gustavus,  48  Wis.  48, 
3  N.  W.  754,  per  Cole,  J.  To  same 
effect  see  Utah  Optical  Co.  v.  Keith, 
56  Pac.  155,  18  Utah  464. 


185  STATUTE  OF  FRAUDS.  [§  149 

could  be  had,  however,  on  the  special  agreement,  as  that  is  declared 
void  by  the  express  terms  of  the  statute.''^- 

Short  term  parol  leases  depend  for  their  validity  on  the  clause  in 
the  statute  of  frauds  excepting  them  from  the  sweeping  general  pro- 
visions of  the  act ;  but  this  excepting  clause  is  omitted  from  the  stat- 
ute, as  reinacted  in  several  of  the  states,  so  that  in  those  states  all 
parol  leases  without  regard  to  the  length  of  the  term  are  rendered 
unenforceable.*'^^  Thus,  in  Massachusetts,  a  parol  lease  "for  the 
season,"  though  construed  to  be  for  a  term  less  than  a  year,  was  held 
to  create  an  estate  at  will  only,  although  the  parol  agreement  was  for 
a  greater  estate.^'^*  Whether  the  omission  of  the  excepting  clause  has 
any  bearing  on  the  doctrine  of  tenancies  from  year  to  year,  has  given 
rise  to  litigation  and  arrayed  courts  of  great  authority  and  learning 
on  opposing  sides. "^^ 

The  provision  in  regard  to  contracts  not  to  be  performed  within  a 
year  is  found  in  the  American  statutes  and,  although  unimportant  in 
England  because  held  not  to  apply  to  contracts  regarding  real  estate, 
becomes  an  important  factor  here  because  it  is  sometimes  held  to 
apply  to  leases. 

§  149.  The  requirement  of  the  original  English  statute  as  to  the 
value  of  the  rent  reserved  has  not  been  incorporated  in  subsequent 
enactments,  and  in  the  United  States  the  exception  in  favor  of  short 
period  parol  leases  is  not  usually  made  dependent  upon  the  reservation 
of  any  rent.  Such  a  provision  is  found  occasionally  however.  Thus, 
in  New  Jersey  the  exception  in  the  statute  of  frauds  does  not  save 
all  leases  for  less  than  three  years  but  only  such  whereupon  the  rent 
reserved  shall  amount  to  two-tliirds,  at  least,  of  the  full  improved 
value  of  the  thing  demised. ^'°  And  in  South  Carolina  the  exception 
is  in  favor  of  leases  "not  exceeding  the  term  of  one  year  from  the 
time  of  entry,  whereupon  the  rent  reserved  to  the  landlord  during 
such  term  shall  amount  unto  two-thirds  part,  at  the  least,  of  the  full 
improved  value  of  the  thing  demised.""^^  In  statutes  where  this  re- 
quirement is  made  the  clause  is  satisfied,  according  to  the  authorities, 
by  showing  that  the  rent  reserved  is  at  least  two-thirds  the  rental 

"-Phipps    V.    Ingrahm,    41    Miss.  "'*  Kelly      v.      Waite,      12      Mete. 

256.  (Mass.)  300. 

""  No  exception  is  made  in  favor  °"  §§  192-214. 

of     short     term     parol     leases     in  ""  Gano   v.   Vanderveer,   34    N.   J. 

Hawaii,  Maine,  Massachusetts,  Mis-  Law  293. 

souri,  New  Hampshire,  New  Mexico,  °'^  Civil  Code  1902,  §  2650. 
Ohio,  Vermont,  Washington. 


§§    150^  151]  THE  INSTEUMEXT  OF  DEMISE.  186 

value  of  the  demised  premises.    It  need  not  be  two-thirds  of  the  im- 
proved value  of  the  fee.®^^ 

§  150.  In  New  Mexico  it  is  held  that  the  common  law,  together 
with  all  British  statutes  of  a  general  nature  not  local  to  that  country, 
nor  in  conflict  with  the  constitution  and  the  form  of  government 
and  institutions,  passed  prior  to  the  separation  of  the  colonies  and  in 
force  at  that  time  form  a  part  of  the  law  of  the  territory,  except  when 
the  laws  of  congress  or  the  local  legislature  had  otherwise  provided.''"^ 
In  accordance  with  this  doctrine  the  English  statute  of  frauds  is  re- 
garded as  in  force  in  New  Mexico.^^"  On  authority  of  the  English 
cases  which  interpret  the  clause  concerning  the  value  of  the  rent  re- 
served, it  has  been  held  that  two-thirds  the  value  of  the  thing  demised 
means  two-thirds  the  rental  value  and  not  two-thirds  the  value  of  the 
fee.®*^  In  other  matters  of  interpretation  it  would  seem  that  the 
courts  in  that  jurisdiction  would  follow  the  analogy  of  the  English 
rules,  even  if  they  did  not  feel  bound  by  the  English  decisions  as 
precedents. 

§  151.  Assignments. — Specific  provision  is  often  made  in  the  vari- 
ous statutes  against  frauds  and  perjuries  against  parol  assignments 
of  leases  for  more  than  a  specified  short  term.  Even  without  such  a 
provision,  it  seems  that  a  contract  for  the  assignment  of  a  lease  for 
more  than  the  permitted  period  for  parol  leases  is  within  the  stat- 
ute.^®^  Where  there  was  no  express  provision  in  a  statute  requiring 
an  assignment  or  underletting  by  a  termor  to  be  in  writing,  it  was 
urged  that  a  term  which  could  only  be  created  by  writing  could  never- 
theless be  assigned  by  parol.  The  court  replied  that  "The  words  of 
these  statutes,  in  truth,  embrace  the  transfer  of  terms  as  well  as  the 
creation  of  them.  They  are  that  all  contracts  to  sell  or  convey  land 
or  any  interest  in  or  concerning  it,  shall,  with  one  exception,  be  void 
unless  in  writing.  Now  a  term  for  years  is  not  only  an  interest  but 
it  is  an  estate  in  land;  and  therefore  a  contract  to  assign  a  term  is 
a  contract  to  sell  and  convey  land.     Besides  it  is  a  mistake  to  sup- 

"» Union  Banking  Co.  v.  Gittings,  ^«»Childers  v.  Talbott,  4  N.  Mex. 

45  Md.  181;  Birckhead  v.  Cummins,  336,  16  Pac.  275. 

33   N.   J.   L.   44;    Cody   v.    Quarter-  ="  Childers  v.  Lee,  5  N.  Mex.  576, 

man,   12   Ga.   386;    Childers  v.   Tal-  25  Pac.  781. 

tott,  4  N.  Mex.  336,  16  Pac.  275.  "'=  Benton  v.  Schulte,  31  Minn.  312, 

""Browning    v.    Browning,    3    N.  17  N.  W.  621;  Kingsley  v.  Siebrecht, 

■Mex.  659,  9  Pac.  677.  92    Me.    23,   42   Atl.    249;    Smith   v. 

Smith,  9  Ky.  L.  R.  100. 


187  STATUTE  OF  FRAUDS.  [§  152 

pose  that  the  statute,  in  respect  to  the  creation  of  terms,  embraces 
only  those  created  immediately  out  of  the  inheritance.  Therefore  if 
a  termor  underlets  the  premises,  so  as  to  leave  a  reversion  in  himself, 
that  is  a  new  term  created  out  of  the  former  one  and  is  within  the 
words  of  the  act."®^^  This  same  point  was  raised  in  a  Michigan  case 
where  it  was  urged  that  the  original  term  was  a  chattel  interest  which 
could  lawfully  be  assigned  by  parol.  Cases  were  cited  which  hold  that 
such  an  interest  can  be  sold  on  execution  as  a  chattel.*'-*  But  it  was 
held  that  the  assignee  did  acquire  an  interest  in  land ;  and  it  was  for- 
bidden by  statute  that  such  an  interest  should  be  acquired  by  parol; 
therefore  a  parol  assignment  of  a  term  for  years  would  be  invalid  if 
the  statute  of  frauds  has  been  pleaded. '^^^  Although  the  subject-mat- 
ter of  the  contract  is  the  lease  itself  and  not  the  land  covered  by  the 
lease,  still  a  contract  for  the  assignment  of  a  lease  is  for  an  interest 
"in  or  concerning"  land,  and  hence  is  within  the  common  wording 
of  the  statute  of  frauds.*'^*'  It  is  none  the  less  a  lease  of  land,  because 
the  lessor  himself  has  only  a  leasehold  estate  and  therefore  a  sub- 
lease of  premises  must  comply  with  the  statute  of  frauds  just  as  much 
as  a  lease  which  creates  a  term  for  years  out  of  a  fee.'^^^ 

The  rule  that  a  transfer  of  possession  will  operate  as  a  part  per- 
formance sufficient  to  take  a  parol  contract  out  of  the  statute  of  frauds 
has  been  applied  in  the  case  of  a  parol  assignment.  The  assignee 
went  into  possession  and  paid  rent,  but  subsequently  vacated,  and  was 
sued  for  rent  accruing  during  the  balance  of  the  term.  It  was  held 
that  part  performance  took  the  case  out  of  the  statute  of  frauds  and 
that  the  landlord  could  recover  the  rent.^^^ 

§  152.  Leases  for  one  year  from  future  date. — T\niere  the  words  of 
the  statute  are  that  parol  leases  for  a  period  of  more  than  one  year 
from  the  mahing  thereof  shall  be  void,  this  clearly  includes  terms 
beginning  in  future  which  are  to  run  for  a  year.^®^   The  same  would 

"'^Briles  v.  Pace,  13  Ired.  L.   (N.         ^^^  Dewey  v.   Payne,   19   Neb.   540, 

Car.)   279.  -  26  N.  W.  248.     But  see  §§  159-161. 

85*  Buhl  V.  Kenyon,  11  Mich.  249;         "^^  Garner  v.  Ullman,  99  Ala.   218, 

Grover  v.  Fox,  36  Mich.  453.  13   So.  382;    Bain  v.  McDonald,  111 

"'^Pratcher    v.    Smith,    104    Mich.  Ala.  269,  20  So.  77.     An  example  of 

537,  62  N.  W.  832,  construing  How.  such    a    statute    is    found    in    Shan. 

St.,  §  6174.  Code  Tenn.,  §  3142,  sub  sec.  4.     It 

"'"  Kingsley   v.    Siebrecht,    92    Me.  reads    that    "No    action     shall     be 

23,  42  Atl.  249.  brought:     .     .     .     Upon     any     con- 

°"  Fratcher    v.    Smith,    104    Mich,  tract  for  the  sale  of  lands,  etc.,  or 

537,  62  N.  W.  832;  Freeland  v.  Ritz,  the  making  of  any  lease  thereof  for 

154  Mass.  257,  28  N.  E.  226.  a  longer  term  than  one  year  from 


§    152]  THE   INSTRUMENT    OF   DEMISE.  188 

be  true  where  the  statute  excepts  parol  leases  for  a  period  of  three 
years  and  less.  An  oral  lease  for  three  years  to  commence  in  the 
future  would  create  an  estate  at  will  only.*'^*'  It  is  equally  clear  that 
'  where  the  exception  is  in  favor  of  leases  not  exceeding  the  term  of 
one  year  from  the  time  of  entry,  a  parol  lease  for  a  year  is  valid, 
though  the  term  is  to  commence  at  a  future  date.*'''^  In  other  states 
the  statute  on  this  point  merely  provides  that  parol  leases  for  one 
year  shall  be  excepted  without  specifying  whether  the  year  is  to  be 
reckoned  from  the  time  of  entry  or  from  the  time  of  making  the  lease. 
Where  the  words  "from  the  making  thereof"  in  an  earlier  act  were 
omitted  from  a  later  one,  it  has  been  held  that  the  prohibition  against 
parol  leases  applied  to  the  length  of  the  term  and  not  to  the  time  of 
beginning.  So  that  a  verbal  lease  to  begin  in  futuro  but  not  to  last 
more  than  a  year  from  the  time  of  beginning  is  not  invalid.®''^  Is  a 
parol  agreement  to  let  real  estate  for  the  term  of  one  year,  to  com- 
mence in  futuro,  valid  in  law?  Yes,  it  is,  because  when  the  legisla- 
ture reduced  the  parol  lease  period  from  three  to  one  year,  it  took 
away  the  words  "from  the  making  thereof,"  and  because  the  term 
does  not  begin  till  the  lessee  obtains  a  right  of  possession.  So  a  parol 
lease  or  a  parol  agreement  to  lease  for  a  term  not  exceeding  one  year 
is  valid  without  regard  to  the  time  when  the  term  is  to  commence.*'''^ 
But  in  statutes  against  frauds  and  perjuries  there  is  a  further  pro- 
vision that  agreements  not  to  be  performed  within  a  year  from  the 
making  thereof  must  be  in  writing.  Such  a  provision  would  on  its 
face  render  a  parol  lease  for  a  year  to  commence  in  the  future  in- 
valid and  unenforceable.  To  obviate  this  difficulty  it  is  necessary  to 
follow  the  English  doctrine  that  this  clause  does  not  apply  to  agree- 
ments in  regard  to  the  sale  of  real  estate.*'^*  On  this  point,  however, 
the  authorities  do  not  agree.*^^^     Such  an  interpretation  is  not  usual, 

the     making     thereof,     unless     the  App.    Div.    627.     Contra,    Beiler    v. 

agreement  shall  be  in  writing."  Devoll,  40  Mo.   App.  251,  under  an 

"""Jennings   v.    McComb,    112    Pa.  obsolete  statute  R.  S.  1879,  §   2513. 

St.  518.     See  also,  Schmitz  v.  Lan-  Sears  v.   Smith,  3   Colo.   287;    Huff- 

ferty,  29  Ind.  400.  man  v.  Starks,  31  Ind.  474;    Sobey 

'"Hillhouse    v.    Jennings,    60    S.  v.  Brisbee,  20  Iowa  105;  McCroy  v. 

Car.  392,  38  S.  E.  596.  Toney,  66  Miss.  233,  5  So.  392. 

''=-  Young   V.    Dake,    5    N.    Y.    463,         "''  Young  v.  Dake,  5  N.  Y.  463. 
overruling    Croswell     v.     Crane,     7         ""^  Fall  v.  Hazelrigg,  45  Ind.  576; 

Barb.  191;   Goldberg  v.  Lavinski,  3  Cole  v.  Wright,  70  Ind.  179;  Young 

Misc.   (N.  Y.)   607,  22  N.  Y.  S.  552;  v.   Dake,   5   N.  Y.   463;    Lowman   v. 

Taggard  v.  Roosevelt,  2  E.  D.  Smith  Sheets,  124  Ind.  416,  24  N.  E.  351. 
(N.  Y.)   100;   Becar  v.  Flues,  64  N.         ""^  Mackey  v.  Potter,  34  Minn.  510, 

Y.  518;   Ward  v.  Hasbrouck,  169  N.  26  N.  W.  906. 
Y.   407,   62   N.   E.   434,   affirming  52 


189 


STATUTE   OF    FRAUDS. 


[§  153 


however,  and  in  most  states  the  provision  against  parol  agreements 
not  to  be  performed  within  the  space  of  one  year  is  held  to  apply 
whether  the  subject-matter  be  real  or  personal  estate.*^^® 

Where  the  finding  was  that  a  lease  was  executed  on  or  about  April  1, 
and  the  term  began  on  that  date,  it  was  held  not  to  be  objectionable 
as  a  lease  for  a  year  to  commence  at  a  future  date.^^' 

§  153.  Extent  of  validity. — Contrary  to  the  rule  in  England,  it 
seems  that  the  short  term  parol  leases  excepted  from  the  operation 
of  the  statute  of  frauds  have  been  regarded  by  American  courts  as 
valid  for  all  purposes.  Thus  it  has  been  held  that  a  parol  lease  vests 
a  present  interest  in  the  term  which  is  assignable  before  entry.'^"^  In 
an  action  for  rent  under  such  a  lease,  it  is  not  necessary  to  show  that 
the  lessee  occupied  or  used  the  demised  premises."^^  The  result  of 
this  doctrine  is  to  allow  a  recovery  of  damages  for  failure  to  give  or 
accept  possession  under  a  parol  lease.  "It  is  certainly  as  plain  as 
anytliing  can  be,"  said  Judge  Frazer,  "that,  under  the  statute,  a  parol 
lease  for  a  term  not  exceeding  three  years  is  valid,  whether  executed 
by  taking  possession  or  not.     There  is  no  room  for  argument  about 


''°'' White  v.  Levy,  93  Ala.  484,  9 
So.  164;  Wickson  v.  Monarch  &c. 
Mfg.  Co.,  128  Cal.  156,  60  Pac.  764; 
Warner  v.  Hale,  65  111.  395;  Creigh- 
ton  V.  Sanders,  89  111.  543;  Brow- 
nell  V.  Welch,  91  111.  523;  Green- 
wood V.  Strother,  91  Ky.  482,  16  S. 
W.  138,  12  Ky.  L.  R.  352;  White  v. 
Holland,  17  Ore.  3,  3  Pac.  573;  Jel- 
lett  V.  Rhode,  43  Minn.  166,  45  N.  W. 
13;  Cram  v.  Thompson,  87  Minn. 
172,  91  N.  W.  483;  Olt  v.  Lohnas, 
19  111.  576;  Wheeler  v.  Frankenthal, 
78  111.  124;  Wolf  v.  Dozer,  22  Kan. 
436;  Briar  v.  Robertson,  19  Mo.  App. 
66;  Atwood  v.  Norton,  31  Ga.  507. 
Michigan  doctrine.  Parol  letting 
for  term  not  to  exceed  one  year  is 
valid  in  Michigan,  even  though  the 
term  is  to  commence  in  futuro,  be- 
cause it  is  a  mere  agreement  to 
lease  which  is  performed  by  the 
leasing,  and  so  is  not  within  a 
clause  which  declares  that  con- 
tracts not  to  be  performed  within 
a  year  must  be  in  writing.    It  seems 


that  under  this  rule  the  term  must 
end  with  two  years.  Tillman  v. 
Fuller,  13  Mich.  113;  Whiting  v. 
Ohlert,  52  Mich.  462,  18  N.  W.  219. 
However,  a  parol  lease  of  one  year 
with  a  privilege  of  three  was  held 
invalid  because  of  the  statute  of 
frauds.  The  court  reject  the  argu- 
ment that  the  contract  might  be 
performed  within  one  year,  and 
would  therefore  be  valid  for  that 
period.  It  was  "within  the  mis- 
chief which  the  statute  is  designed 
to  prevent.  The  contract  contem- 
plated a  lease  for  three  years,  and 
so  far  as  the  lessor  is  concerned  it 
is  absolute.  ...  It  follows  that 
the  agreement  is  void  under  the 
statute."  Hand  v.  Osgood,  107  Mich. 
55,  64  N.  W.  867. 

"»'  Mackey  v.  Potter,  34  Minn.  510, 
26  N.  W.  906. 

""^Becar  v.  Flues,  64  N.  Y.  518. 

^'^  Mayer  v.  Lawrence,  58  111.  App. 
194. 


§    153]  THE    INSTRUMENT    OF   DEMISE,  190 

that  proposition;  and  it  follows  that  the  lease  stated  in  the  complaint 
was  a  valid  lease.  By  its  terms,  the  lessee  was  to  have  possession  of 
the  premises,  and  the  lessor  would  be  entitled  to  the  rents.  If  bind- 
ing upon  one  party,  it  was  likewise  binding  on  the  other.  If  valid 
as  a  lease,  it  must  give  the  lessee  the  right  to  occupy  the  premises 
according  to  its  terms  and  conditions,  and  a  remedy  of  some  kind 
for  the  privation  of  that  right  would  follow.  It  is  a  solecism  to 
say  that  the  contract  was  obligatory,  and  yet  that  it  cannot  in  any 
manner  be  enforced.  What  the  remedy  for  its  enforcement  is,  re- 
mains the  only  question,  then,  necessary  to  the  decision  of  the  case 
before  us.  It  is  a  general  proposition  that  one  who  is  entitled  to 
the  possession  of  real  estate  may  recover  such  possession  by  a  suit 
for  that  purpose,  and  we  know  of  no  authority  or  reason  for  making 
a  lessee  an  exception  to  that  rule.  Possession  is  the  specific  thing 
for  which  the  lessee  contracted  and  if  the  law  will  not  give  him  that, 
or  damages  for  its  privation,  it  is  not  perceived  how  the  contract 
can  be  held  to  be  binding  upon  the  lessor."^''*' 

The  distinction  made  by  the  English  courts  as  to  parol  leases  not 
executed  by  transfer  of  possession  has,  however,  been  followed  in 
South  Carolina.  A  lessee  brought  an  action  on  a  verbal  lease  for 
a  year  to  recover  damages  from  his  lessor  for  failure  to  carry  out 
the  agreement  and  put  the  lessee  in  possession  according  to  the  terms 
of  the  contract.  It  was  held  he  could  not  recover.^"^  Yet,  after  a 
lessee  went  into  possession  under  a  parol  lease  for  a  year  and  occupied 
and  paid  rent  for  several  months,  he  was  held  liable  for  rent  for  the 
entire  year,  though  he  vacated  the  premises  before  the  year  ex- 
pired.''*'^ The  law  is  the  same  in  Maryland  where  Judge  Alvey  stated 
the  rule  as  follows:  ''The  effect  of  the  first,  second  and  third  sec- 
tions of  the  Statute  of  Frauds,  taken  together,  so  far  as  they  apply 
to  parol  lease  not  exceeding  three  years  from  the  making  thereof,  is 
this,  that  the  leases  are  valid  and  that  whatever  remedy  can  be  had 
on  them  in  their  character  of  leases,  may  be  resorted  to  but  they  do 
not  confer  the  right  to  sue  the  lessee  for  damages  for  not  taking  pos- 
session. And  until  entry  by  the  lessee  the  whole  estate  and  right  of 
possession  remain  in  the  lessor,  the  lessee  having  but  an  interesse 
te7-m'kiij  and  nothing  more."''°^ 

■"*  Huffman  v.  Starks,  31  Ind.  474.  ™=  Hellams  v.   Patton,   44   S.   Car. 

Disapproving    Stackberger    v.    Mos-  454,  22  S.  B.  608. 

teller,  4  Ind.  461,  where  in  such  a  '"^  Union  Banking  Co.  v.  Gittings, 

case  it  was  held  damages  could  not  45  Md.   181,   196.     Quoted  with  ap- 

be  recovered.  proval  in  Childers  v.  Talbott,  4  N. 

™'  Davis  V.  Pollock,  36  S.  Car.  544,  Mex.  336,  16  Pac.  275. 
15  S.  E.  718. 


191  STATUTE  OF  FRAUDS.  [§'  15i 

A  case  on  the  border  line  was  that  where  a  parol  agreement  was 
made  to  allow  a  tenant  to  enter  after  the  expiration  of  his  term  to 
harvest  crops  planted  the  preceding  fall.  The  court  held  that  if 
the  agreement  was  supported  by  sufficient  consideration  it  was  valid 
because  the  interest  created  was  for  less  than  a  year.'^^*  After  a  lessee 
has  been  in  occupation  under  a  parol  lease  for  a  period  permitted  by 
the  statute,  an  action  can  be  brought  to  charge  him  on  the  lease.'^"^ 

§  154.  Duration  of  term. — Where  a  parol  lease  gives  the  lessee  a 
privilege  of  extension  for  a  period  beyond  the  statutory  limit  for 
parol  leases  to  run,  the  entire  agreement  is  void.  The  original  term 
and  the  extension  constitute  but  a  single  letting,  and  if  the  two  ex- 
ceed the  prescribed  period,  the  lease  is  invalid  because  not  reduced 
to  writing.^*'®  Still,  in  spite  of  previous  decisions,  the  New  York 
Court  of  Appeals  held  that  a  lease  by  parol  for  four  months  with  an 
option  for  an  extension  for  a  period  not  exceeding  three  years  at  a 
stipulated  rental  was  valid  as  a  lease  for  four  months.  The  exist- 
ence of  the  option  did  not  render  this  agreement  a  lease  for  a  longer 
period  than  four  months  as  it  might  not  be  exercised  and  it  was  en- 
tirely possible  for  the  lease  to  terminate  at  the  end  of  the  definite 
period  agreed  upon.'^"^  The  reason  assigned  by  the  court  was  that, 
the  statute  does  not  include  an  agreement  which  is  not  likely  or  is- 
not  expected  to  be  performed  within  a  year,  if,  when  fairly  and  reason- 
ably interpreted,  it  admits  of  a  valid  execution  within  that  time,  al- 
though it  may  not  be  probable  that  it  will  be.'^*'^  But  the  failure 
to  notify  in  writing  of  an  election  to  extend,  given  by  a  written  lease, 
does  not  render  the  extension  bad  because  of  the  Statute  of  Frauds. 
The  theory  is  that  the  entire  term,  including  the  extension,  is  created 
by  the  original  written  instrument.'^*'® 

A  lease  of  real  estate  until  such  time  as  lessor  pays  lessee  a  certain 

'»*Ladd  V.   Brown,   94   Mich.   136,  24   Barb.    (N.   Y.)    525;    Kramer  v. 

53  N.  W.  1048.  Cook,   7   Gray    (Mass.l    550;    Voege 

'"^'Lowman    v.    Sheets,    124    Ind.  v.   Ronalds,   83   Hun  114,   31   N.   Y. 

416,  24  N.  E.  351.  S.  353. 

"»Schmitz    V.    Lauferty,    29    Ind.  '"Ward  v.  Hasbrouck,  169  N.  Y. 

400;   Hand  v.  Osgood,  107  Mich.  55,  407,  62  N.  E.  434,  affirming  52  App. 

64   N.   W.    867;    Holzderber   v.    For-  Div.  627. 

restal,  13  Daly   (N.  Y.)   34;  Carling  '"'Warren    &c.    Mfg.    Co.    v.    Hol- 

V.  Purcell,  19  N.  Y.  S.  183,  46  N.  Y.  brook,  118  N.  Y.  586,  593,  23  N.  E. 

St.    287;    Rosen    v.    Rose,    13    Misc.  908;  Kent  v.  Kent,  62  N.  Y.  560. 

565,   68  N.  Y.  St.  370,   2  Ann.  Cas.  ™  Zillig,   Matter  of,  13   N.  Y.   St. 

194,   34   N.   Y.   S.   467;    Chretien   v.  891. 
Doney,  1  N.  Y.  419;  House  v.  Burr, 


§§    155,    156]  THE  INSTRUMEXT   OF   DEMISE,  193 

indebtedness,  is  neither  an  agreement  that  is  not  by  its  terms  to  be 
performed  within  a  year  from  the  making  thereof,  nor  an  agreement 
for  a  leasing  for  a  longer  period  than  one  year  and  is  not  required  to 
be  in  writing. ''^°  In  another  ease  the  question  arose  whether  a  parol 
lease  for  one  year,  with  an  agreement  that  the  tenant  might  sow  the 
land  in  wheat,  gave  him  the  right  to  enter  after  the  expiration  of  the 
year  and  harvest  the  crops.  It  was  held  that  the  right  to  enter  and 
reap  was  an  interest  in  lands  and  that  to  sustain  the  lease  would  be 
to  extend  a  parol  lease  over  a  period  of  two  years,  which  was  for- 
bidden by  the  statute  of  frauds.'^^^ 

§  155.  Whether  void  only  as  to  excess. — A  parol  lease  for  a  period 
of  so  great  duration  that  it  is  rendered  unenforceable  by  the  statute 
of  frauds  cannot  be  considered  good  for  the  period  during  which  a 
parol  lease  would  be  valid  and  void  only  as  to  the  remainder.  How- 
ever, where  a  tenant  enters  and  occupies  under  a  lease  which  cannot 
take  effect  because  of  the  statute  of  frauds,  it  will  usually  result  in 
a  tenancy  from  year  to  year.'^^^  This  distinction  has  an  important 
bearing  on  the  rights  of  the  parties  even  where  the  period  of  parol 
leases  is  set  at  one  year.  In  the  face  of  specific  statutory  provision 
that  certain  parol  leases  are  void,  a  court  does  not  seem  justified  in 
saying  that  while  such  a  lease  cannot  be  enforced  according  to  the 
terms  agreed  upon  by  the  parties,  it  is  a  valid  lease  for  one  year, 
three  years  or  five  years,  as  the  case  may  be.  After  the  lessee  enters 
into  possession  and  pays  some  aliquot  part  of  an  annual  rent,  the 
general  doctrine  of  tenancy  from  year  to  year  is  applicable.^^^  Yet 
it  has  been  held  that  such  a  lease  is  a  valid  demise  for  a  year  certain, 
being  void  only  as  to  the  excess  of  the  term  beyond  the  time  per- 
mitted for  parol  leases  by  the  statute.'^^* 

§  156.  Sufficiency  of  memorandum. — If  a  statute  reads  that  no  es- 
tate or  interest  in  lands  can  be  created  or  conveyed  without  writing 
but  an  estate  at  will,  it  is  immaterial  how  the  existence  of  a  tenancy 
is  shown,  whether  by  parol  evidence,  or  by  written  instruments,  as 
receipts  for  rent,  or  the  like;  the  right  of  the  tenant,  whatever  might 
seem  to  be  the  actual  contract  of  the  parties,  is  nothing  but  a  tenancy 
at  will  unless  it  can  be  shown  that  some  other  or  higher  interest  or 

^"Raynor  v.  Drew,  72  Cal.  307,  "=  Carey  v.  Richards,  4  W.  L.  M.' 
13  Pac.  866.  (Ohio)   251,  2  Ohio  Dec.  R.  630. 

'"  Carney  v.  Mosher,  97  Mich.  554,  ™  Hosli  v.  Yokel,  58  Mo.  App.  169. 
56  N.  W.  935.  "^  Friedhoff  v.   Smith,   13  Neb.  5, 

12  N.  W.  820. 


\ 


193  STATUTE  OF  FRAUDS.  [§  15G 

estate,  as  a  tenancy  at  life  or  for  years,  was  created  or  conveyed  by 
writing. ■^^^  Thus  written  receipts  for  rent  were  held  not  to  take 
a  parol  lease  out  of  the  statute  of  frauds  because  the  statute  required 
that  the  estate  be  created  or  conveyed  by  a  writing  and  the  rent  re- 
ceipts merely  went  to  the  matter  of  proof  of  the  existence  of  the 
term.  The  natural  interpretation  of  such  words  is  that  the  writing 
required  for  the  creation  of  an  interest  in  land  is  more  than  a  memo- 
randum of  the  constituent  act ;  that  it  is  itself  the  constituent  act.  It 
seems  clear  that  the  writing  must  have  a  part  at  least  in  the  creation 
of  the  estate.  The  statute  is  not  dealing  with  promises,  in  which 
case  it  would  naturally  be  directed  only  to  the  rights  of  the  parties 
to  the  contract,  but  with  estates,  which  are  interests  in  rem,  good 
against  all  the  world.  It  therefore  is  dealing  with  the  rights  of  all 
the  world,  and  when  it  says  that  an  estate  created  without  writing 
shall  have  the  effect  of  an  estate  at  will  only,  it  affects  the  reciprocal 
rights  of  the  tenant  and  of  any  one  else  who  may  be  concerned  in  the 
nature  of  that  estate.'^^® 

In  regard  to  all  sections  of  the  statute  of  frauds  the  general  rule 
is  that  the  memorandum  in  writing  required  to  satisfy  the  statute 
must  contain  all  the  essential  terms  of  the  contract,  so  that  the  court 
can  ascertain  the  rights  of  the  parties  from  the  writing  itself  without 
resorting  to  oral  testimony.  Therefore  an  auctioneer's  memorandum 
in  which  the  purchaser  agrees  to  fulfil  all  the  conditions  of  the  sale, 
such  conditions  having  been  stated  orally  by  the  auctioneer,  is  not 
sufficient.  The  difficulty  is  that  the  contract  is  partly  in  writing 
and  partly  by  parol.  A  memorandum  which  does  not  state  the  term 
or  duration  of  a  proposed  lease  does  not  satisfy  the  statute  of  frauds, 
because  those  omissions  cannot  be  supplied  by  parol.''"  The  date 
of  a  lease  for  years,  the  remaining  time  it  has  to  run,  is  obviously 
an  essential  item  in  the  description  of  the  interest  created  by  it. 
Without  that  being  fixed,  the  whole  interest  under  the  lease  is  inde- 
terminate. It  is  an  essential  element  of  the  contract  and  must  be 
completely  stated  in  the  memorandum.'^^^ 

A  ratification  of  a  parol  lease  of  land  for  a  term  of  more  than 
three  years,  to  avoid  the  effect  of  the  statute  of  frauds,  must  be  signi- 
fied by  writing.  This  ratification  cannot  be  made  by  the  original 
lessor  after  he  has  conveyed  his.  title  to  another.     After  the  property 

"'Whitney  v.  Swett,  22  N.  H.  10.        "* Riley  v.  Farnsworth,  116  Mass. 

"'Emery  v.  Boston  Terminal  Co.,  223;  Kingsley  v.  Siebrecht,  92  Me. 
178  Mass.  172,  59  N.  B.'  763.  23,  31,  42  Atl.  249. 

'"  Parker    v.    Tainter,    123    Mass. 
185. 

Jones  L.  &  T.— 13 


§■    157]  THE    IXSTRU:\IEXT    OF   DEillSE,  19-i 

had  been  disposed  of,  any  act  of  the  lessor  would  be  ineffectual  to 
create  a  term  which  did  not  previously  exist." ^^  It  seems  to  be  set- 
tled in  England  with  regard  to  sales  of  chattels  under  the  seventeenth 
section  of  the  statute  of  frauds,  that  the  memorandum  does  not  re- 
troact  so  as  to  affect  third  persons. '-°  It  does  not  effect  this  result 
that  an  act  satisfying  this  section  of  the  statute  relates  back  to  the  date 
of  the  oral  contract  as  between  the  parties.'-^ 

§  157.  Authority  of  agent. — The  acts  which  require  that  certain 
interest  in  land  shall  only  be  created  or  transferred  by  writing  usually 
provide  further  that  agents  who  undertake  to  execute  such  con- 
tracts must  be  authorized  in  writing.'^-  When  this  requirement  for 
written  authorization  is  omitted  from  the  act,  as  was  the  case  in  an 
early  statute  in  Illinois,  since  repealed,  it  seems  that  authority  con- 
ferred upon  the  agent  by  parol  would  be  valid,  since  the  common  law 
required  no  formalities  for  the  creation  of  agents.'^^^  But  if  the 
lease  itself  need  not  be  in  writing,  as  where  it  is  for  a  year  only,  the 
power  of  an  agent  to  execute  it  need  not  be  expressed  in  writing, 
because  such  a  contract  is  not  included  in  the  terms  of  the  statute."-* 
It  has  been  held,  moreover,  that  an  oral  ratification  is  good  though 
a  previously  conferred  document  must  be  by  written  instrument.'^-^ 
This  decision  was  based  on  the  proposition  that  a  simple  contract  in 
writing  made  without  authority  is  susceptible  of  oral  ratification, 
which  was  laid  down  by  Lord  Chief  Justice  Best  in  an  early  case,  as 
follows :  ''It  has  been  argued  that  the  subsequent  adoption  of  the 
contract  will  not  take  this  case  out  of  the  statute  of  frauds;  and  it 
has  been  insisted  that  the  agent  should  have  his  authority  at  the 
time  the  contract  is  entered  into.  If  such  had  been  the  intention 
of  the  legislature,  it  would  have  been  expressed  more  clearly  .  .  . 
in  all  other  cases,  a  subsequent  sanction  is  considered  the  same  thing  in 
effect  as  assent  at  the  time.     And  in  my  opinion,  the  subsequent 

"» Dumn  V.  Rothermel,  112  Pa.  St.  ^^  Borderre  v.  Den,  106  Cal.   594, 

272,   3   Atl.    800;    Emery   v.   Boston  39    Pac.    946;    Judd    v.    Arnold,    31 

Terminal  Co.,  178  Mass.  172,  59  N.  Minn.    430,   18    N.   W.    151;    Hoover 

E.    763;    Whiting   v.    Massachusetts  &c.    Co.    v.    Pacific   Oil   Co.,    41    Mo. 

&c.  Ins.  Co.,  129  Mass.  240,  241.  App.  317;   Folsom  v.  Perrin,  2  Cal. 

""Coats  V.   Chaplin,   3   Q.   B.   483,  603. 

486,  43  E.  C.   L.   831;    Stockdale  v.  "=^  Lake  v.  Campbell,  18  111.  106. 

Dunlop,   6  M.  &  W.  224,   233;    Felt-  ™  Gilson  v.  Boston,   11  Nev.  413; 

house  V.  Bindley,  11  C.  B.    (N.  S.)  Hoover   &c.    Co.    v.    Pacific    Oil    Co., 

869,  877.  41  Mo.  App.  317. 

'"  Leadlay  v.  McRoberts,   13  Ont.  ''=^  Bless  v.   Jenkins,   129  Mo.   647, 

App.  378,  383.  31  S.  W.  938. 


195  STATUTE  OF  FRAUDS.  [§  158 

sanction  of  a  contract  signed  by  an  agent  takes  it  out  of  the  opera- 
tion of  the  statute  more  satisfactorily  than  an  authority  given  be- 
forehand.""« 

On  the  other  hand  there  are  cases  holding  a  ratification  must  be  in 
writing  to  be  valid.  Where  the  owner  of  land  ratified  the  unauthor- 
ized act  of  his  agent  in  executing  a  lease  for  one  year  with  option  of 
four  more  by  receiving  rent  paid  under  the  terms  of  the  lease,  this 
did  not  render  the  term  valid  for  five  years,  because  the  ratification, 
to  be  effective,  must  be  in  writing."^  An  estate  at  will  only  is  created 
by  such  circumstances  which  becomes  a  tenancy  from  month  to  month 
upon  payment  of  a  monthly  rent.  Under  such  circumstances,  how- 
ever, a  guarantor  of  rent  has  been  held  liable  for  payment  of  rent 
in  the  manner  in  which  the  lease  eventually  took  effect."*  Where 
an  agent  assumes  to  execute  a  lease  in  excess  of  his  authority,  and  the 
principal  enters  and  pays  rent,  this  will  create  a  tenancy  from  year 
to  year.''^-'* 

A  lease,  executed  by  agents  without  authority  in  writing,  was  held 
to  be  ratified  by  a  subsequent  conveyance  of  the  property  by  the  owners 
by  a  deed  which  excepted  the  outstanding  lease.  The  language  in 
question  meant  that  the  premises  had  come  to  the  grantor  and  were 
conveyed  by  him,  subject  to  a  lease  in  favor  of  the  person  then  oc- 
cupying the  premises.  The  terms  of  the  deed  and  the  relationship 
of  the  parties  when  it  was  executed,  present  substantial  evidence  of 
such  affirmance  of  the  lease  as  cured  the  want  of  written  authority 
on  the  part  of  the  agents  who  signed  it.^^*^ 

§  158,  Leases  by  undisclosed  principals. — The  rule  that  a  princi- 
pal may  sue  in  his  own  name  upon  a  contract  made  with  his  agent 
applies  to  cases  of  sales  by  written  bills  or  other  memoranda  made 
by  the  agent,  using  his  own  name,  and  disclosing  no  principal,  the 
same  as  in  cases  of  oral  contracts.'^^^  The  statute  of  frauds  does  not 
change  the  law  as  to  the  rights  and  liabilities  of  principals  and 
agents,  either  as  between  themselves,  or  as  to  third  persons.     The 

"•'Maclean  v.  Dunn,  4  Bing.  722.  23,  42  Atl.  249;  Tainter  v.  Lombard, 

"-'Williams  v.  Mershon,  57  N.  J.  53  Me.  369;  Eastern  R.  Co.  v.  Bene- 

Law  242,  30  Atl.  619.  diet,  5  Gray   (Mass.)   561;   Barry  v. 

"« Lehman  V.  Nolting,  56  Mo.  App.  Page,   10   Gray    (Mass.)    398;    Win- 

549.  Chester   v.    Howard,    97    Mass.    303; 

"^Hoover  &c.  R.  Co.  v.  Pacific  Oil  Sims  v.  Bond,  5  B.  &  Ad.  389,  393; 

Co.,  41  Mo.  App.  317.  Huntington      v.      Knox,      7      Cush. 

™  Christopher  v.  National  &c.  Co.,  (Mass.)     371;     Exchange    Bank    v. 

72  Mo.  App.  121.  Rice,    107    Mass.    37;    Byington    v. 

™Kingsley   v.    Siebrecht,    92    Me.  Simpson,  134  Mass,  169. 


§    159]  THE    INSTRUMENT    OF    DEMISE.  19G 

provisions  of  the  statute  are  complied  with  if  the  names  of  competent 
contracting  parties  appear  in  the  writing,  and  if  a  party  be  an  agent, 
it  is  not  necessary  that  the  name  of  the  principal  be  disclosed  in  the 
writing.  Indeed,  if  a  contract,  within  the  provisions  of  the  statute, 
be  made  by  an  agent,  whether  the  agency  be  disclosed  or  not,  the 
principal  may  sue  or  be  sued  as  in  other  cases. '^^ 

§  159.  Effect  of  part  performance  of  a  parol  lease. — Without  pass- 
/  ing  on  the  question  as  to  what  can  be  considered  as  part  performance 
of  a  lease,  the  general  distinction  made  between  courts  administering 
law  and  those  governed  by  equitable  principles  should  be  noticed. 
According  to  the  weight  of  authority,  part  performance  by  either 
party- will  not  render  a  parol  lease  valid  in  a  court  of  law;  but  courts 
of  equity  will  take  jurisdiction  to  enforce  a  parol  lease  when  it 
would  be  fraudulent  on  the  part  of  a  defendant  to  avail  himself  of  the 
statute. '^^^  However  the  point  may  be  confused  by  the  mingling  of 
law  and  equity,  the  principle  seems  clear  that  a  part  performance  of 
the  contract  does  not,  at  law,  take  the  case  out  of  the  operation  of 
the  statute  of  frauds.'^''*  In  an  early  Iowa  case  this  distinction  be- 
tween law  and  equity  was  brought  out.  "We  are  not  required,"  said 
the  court,  "to  state  what  a  court  of  equity  would  do  under  the  circum- 
stances, but  a  court  of  law  is  confined  to  the  provisions  of  the  statute, 
with  which  it  io  nut  at  liberty  to  dispense,  unless  the  party  brings 
himself  clearly  within  some  of  the  exceptions  therein  specified."^^^ 
It  was  further  held  in  that  state  that  an  express  statutory  excep- 
tion of  parol  contracts  to  purchase  under  certain  circumstances  did 
not  extend  to  parol  leases.'^^*'     The  effect  of  this  exception  which 


"'  Thayer  v.  Luce,  22  Ohio  St.  62 
Pugh  v.  Chesseldine,  11  Ohio  109 
Dykers  v.  Townsend,  24  N.   Y.   57 


138;    Manning  v.  Franklin,  81  Cal. 

205,  22  Pac.  550;  Eaton  v.  Whltaker. 

18  Conn.  222;  Marr  v.  Ray,  151  111. 
Kingsley  v.  Siebrecht,  92  Me.  23,  340,  37  N.  E.  1029;  Smelling  v.  Val- 
42Atl.  249;  Lerned  v.  Johns,  9  Allen  ley,  103  Mich.  580,  61  N.  W.  878; 
(Mass.)  419;  Hunter  v.  Giddings,  Wallace  v.  Scoggins,  17  Ore.  476,  21 
97  Mass.  41;  Williams  v.  Bacon,  2  Pac.  558;  s.  c.  18  Ore.  502;  Utah  L. 
Gray  (Mass.)  387;  Salmon  Falls  &  T.  Co.  v.  Garbutt,  6  Utah  342,  23 
.  Mfg.  Co.  v.  Goddard,  14  How.  (U.  Pac.  758. 
S.)  446;  Browne  on  Statute  of  ™  Creighton  v.  Sanders,  89  111. 
Frauds,  §  373;  3  Parsons  on  Con-  543;  Brownell  v.  Welch,  91  111.  523; 
tracts,  5  ed.,  p.  10,  §  660.  Warner  v.  Hale,  65  111.  395. 

^"Morrison  v.  Peay,  21  Ark.  110;         '^  Hunt  v.  Coe,  15  Iowa  197. 
Brockway  v.  Thomas,  36  Ark.  518;         "*  Thorp  v.  Bradley,  75   Iowa  50, 
Johnson  v.  Branch,  48  Ark.  535,  3  S.     39  N.  W.  177;  Burden  v.  Knight,  82 
W.  819;   McCarger  v.  Rood,  47  Cal.     Iowa  584,  48  N.  W.  985. 


197  STATUTE  OF  FRAUDS.  [§  160 

docs  not  apply  to  leases  has  ijcen  held  to  be  that  even  in  equity  the 
doctrine  that  part  performance  takes  the  case  out  of  the  statute 
cannot  be  recognized.^^^  Such  part  performance  of  a  parol  agree- 
ment to  lease  that  it  could  be  enforced  in  equity  does  not  furnish 
a  defense  at  law  in  the  absence  of  any  such  action  by  a  court  of 
equity. '^^  A  lessee  is  not  without  remedy,  however,  even  though  his 
parol  lease  is  not  rendered  valid  by  part  performance.  If  one  party 
in  consideration  of  an  agreement  which  is  within  the  statute  of  frauds, 
and  which  the  other  party  declined  to  carry  out,  expends  money  in 
building  on  his  land,  the  one  building  may  maintain  an  action  to  re- 
cover the  cost  of  such  building. '^^^ 

There  are  cases,  however,  which  hold  that  part  performance  of  a 
parol  lease  for  more  than  the  permitted  period  will  make  it  valid  at 
law.  One  of  these  cases  was  an  action  for  rent  during  the  unexpired 
term.  The  counsel  did  not  bring  out  the  difference  in  the  tenant's 
rights  in  law  and  in  equity  but  argued  that  part  performance  would 
not  avail  h.im  in  either  tribunal,  and  the  court  cited  as  authority 
equity  cases.^*°  In  another  the  action  was  forcible  detainer  by  the 
landlord  and  it  was  probably  open  to  the  defendant  to  set  up  equi- 
table defenses  to  such  an  action.  The  latter  case  was  a  strong  one,  as 
the  tenant  had  made  many  valuable  improvements  and  the  landlord 
had  recognized  his  right  to  the  premises  during  the  major  part  of  the 
term.^" 

§  160.  In  order  to  amount  to  part  performance,  an  act  must  be  un- 
equivocally referable  to  the  agreement;  and  the  ground  on  which 
courts  of  equity  have  allowed  such  acts  to  exclude  the  application  of 
the  statute,  is  fraud.  A  party  who  has  permitted  another  to  perform 
acts  on  the  faith  of  an  agreement,  shall  not  insist  that  the  agreement 
is  bad,  and  that  he  is  entitled  to  treat  those  acts  as  if  it  had  never 
existed.  That  is  the  principle,  but  the  acts  must  be  referable  to  the 
contract.  Between  landlord  and  tenant,  when  the  tenant  is  in  pos- 
session at  the  date  of  the  agreement  and  only  continues  in  possession, 

'"Powell   V.  Crampton,   102   Iowa  '"Bard  v.  Elston,  31  Kan.  274,  1 

364,  71  N.  W.  579.  Pac.  565.     In  Wilber  v.  Paine,  1  Ohio 

™  Petsch  v.  Biggs,  31  Minn.  392,  18  251,  a  parol  lease  was  rendered  valid 

N.  W.  101.  by  part  performance  so  as  to  enable 

739  Parker    v.    Tainter,    123    Mass.  an   assignee  of  the  lessee  to  main- 

185;  Kidder  v.  Hunt,  1  Pick.  (Mass.)  tain   an  action   of  tort  against  the 

328;    White   v.   Wieland,   109    Mass.  landlord    for    a    conversion    of    the 

291;  Dix  v.  Marcy,  116  Mass.  416.  crop. 

•'"Grant    v.    Ramsey,    7    Ohio    St. 
157;  Wilber  v.  Paine,  1  Ohio  251. 


160] 


THE   INSTRUMENT    OF   DEMISE. 


198 


it  is  properly  observed  that  in  many  eases  that  continuance  amounts 
to  nothing;  but  admission  into  possession,  having  unequivocal  refer- 
ence to  contract,  has  always  been  considered  an  act  of  part  perfor- 
mance. The  acknowledged  possession  of  a  stranger  to  land  of  another 
is  not  explicable  except  on  the  supposition  of  an  agreement,  and  has 
therefore  constantly  been  received  as  evidence  of  an  antecedent  con- 
tract and  as  suflBcient  to  authorize  an  inquiry  into  the  terms.'^*^  In 
equity,  therefore,  leases  may  be  taken  out  of  the  statute  of  frauds  by 
part  performance;  and  a  transfer  of  possession  may  be  such  part  per- 
formance.^*^ This  is  strengthened  where,  in  addition  to  a  transfer  of 
possession,  rent  is  paid  and  accepted  under  the  lease.''**  So  it  has 
been  held  that  delivery  of  possession  to  a  tenant,  continued  occupation 
by  him  and  payment  of  rent  according  to  terms  of  agreement,  are 
sufficient  to  take  an  agreement  to  give  a  lease  out  of  the  statute  of 
frauds.^*^ 

In  reliance  on  an  oral  agreement  for  a  five-year  lease,  tenants  went 
ahead  and  made  valuable  improvements.  This  was  such  a  part  per- 
formance that  the  agreement  could  be  enforced  in  equity.'^*®  It  con- 
stituted a  sufficient  part  performance  to  take  a  parol  lease  out  of  the 
statute  of  frauds  for  the  lessee  to  clear  a  part  of  the  land,''*'  for  him 
to  enter  upon  and  cultivate  the  land,''*^  and  for  him  to  make  per- 
manent improvement  on  the  leased  premises,''*^  such  as  planting 
shrubbery  on  the  premises  and  fitting  expensive  carpets  to  the  floors 
of  the  leased  house.'^"  Where  one  who  is  already  in  possession  of 
land  as  tenant  verbally  contracts  with  the  owner  for  a  new  term,  his 
merely  continuing  in  possession  after  the  making  of  the  alleged  con- 
tract is  not  an  act  of  taking  possession  within  the  meaning  of  the 


I 


'"Morphett  v.  Jones,  1  Swanst. 
172;  Earl  of  Aylesford's  Case,  2  Str. 
783;  Morrison  v.  Peay,  21  Ark.  110; 
Johnson  v.  Branch,  48  Ark.  535,  3  S. 
W.  819. 

''^  Hodges  v.  Howard,  5  R.  I.  149, 
158;  Simmons  v.  Simmons,  12  Jur. 
8,  6  Hare  352;  Wiley's  Estate,  6  W. 
N.  Cas.  208;  Weddall  v.  Capes,  1  M. 
&  W.  50;  Huron  v.  Kerr,  15  Grant 
Ch.  265. 

'**  Grant  v.  Ramsey,  7  Ohio  St. 
157;  Butler  v.  Powis,  2  Coll.  156, 
161;  Wiley's  Estate,  6  W.  N.  Cas. 
208. 


'« Eaton  V.  Whitaker,  18  Conn. 
222. 

'"Morrison  v.  Herriek,  27  111. 
App.  339. 

'"Smelling  v.  Valley,  103  Mich. 
580,  61  N.  W.  878. 

'^^McCarger  v.  Rood,  47  Cal.  138; 
Manning  v.  Franklin,  81  Cal.  205, 
22  Pac.  550. 

'"Morrison  v.  Peay,  21  Ark.  110; 
Johnson  v.  Branch,  48  Ark.  535,  3  S. 
W.  819;  Brockway  v.  Thomas,  36 
Ark.  518;  Wilber  v.  Paine,  1  Ohio 
251. 

'■"^Wallace  v.  Scoggins,  17  Ore. 
476,  21  Pac.  558;  s.  c.  18  Ore.  502. 


199  STATUTE  OF  FRAUDS.  [§§  161,  162 

rule  so  as  to  justify  a  decree  for  a  lease  according  to  the  contract."^ 
It  is  a  recognized  principle  in  the  doctrine  of  part  performance  of 
oral  contracts  that  mere  continuation  in  possession  is  not  such  part 
performance  of  an  oral  lease  as  will  justify  a  court  of  equity  in  mak- 
ing a  decree  for  specific  performance."^ ^^ 

Part  payment  of  purchase  money  does  not  take  a  parol  agreement 
for  a  sale  of  real  estate  out  of  the  statute.  A  sufficient  reason  for  this 
is  found  in  the  fact  that  a  provision  to  this  effect  in  regard  to  sales 
of  chattels  is  found  in  the  statute  of  frauds;  but  is  omitted  from 
sections  covering  transfers  of  real  property.  It  follows  as  a  result  of 
this  doctrine  that  payment  of  rent  or  even  prepayment  will  not  take 
a  parol  lease  out  of  the  statute.'^^^ 

§  161.  In  Alabama  the  effect  of  part  performance  is  regulated  by 
statute.  Part  performance  by  transfer  of  possession  and  payment 
of  rent  in  the  manner  stated  in  the  statute  will  operate  to  save  every 
parol  lease  of  land,  otherwise  valid,  from  the  vitiating  effect  of  the 
statute,  whether,  by  its  terms,  the  enjoyment  of  the  demised  premises 
is  to  begin  in  praesenti  or  in  futuro,  and  no  matter  whether  the  period 
of  the  lease  be  one  year  or  twenty.  It  must  be  considered  as  definitely 
settled  in  that  state  that  whether  the  parol  be  for  more  than  one  year 
or  for  a  year  to  begin  at  a  future  date,  taking  possession  under  the 
contract  and  part  payment  of  the  rent  will  render  the  agreement  in 
all  respects  as  valid  as  if  it  had  been  reduced  to  writing  and  duly 
signed  by  the  parties. ^^* 

§  162.  There  is  a  very  obvious  difference  between  a  parol  agree- 
ment to  make  a  written  lease  and  a  parol  lease  with  a  further  or  in- 
cidental agreement  that  it  shall  be  put  in  writing.  In  one  case  the 
making  of  the  writing  is  the  subject  of  the  agreement  and  only  that 
can  execute  it ;  in  the  other  the  subject  is  the  act  or  fact  of  present 

'"^Wilmer  v.  Farris,  40  Iowa  309;  '"^  gpaitjjng  y.  Conzelman,  30  Mo. 

Anderson  v.  Simpson,  21  Iowa  399;  177. 

Mahana  v.  Blunt,  20  Iowa  142;  Bil-  '^^Brockway  v.   Thomas,   36   Ark. 

lingslea  v.  Ward,  33  Md.  48;  Rosen-  518;   Webster  v.  Blodgett,  59  N.  H. 

thai  V.  Freeburger,  26  Md.  75;  Cole  120;    Townsend   v.   Sharp,   2   Tenn. 

V.  Potts,  10  N.  J.  Eq.  67;  Armstrong  192. 

V.  Kattenhorn,  11  Ohio  265;   Green-  ™  A.  G.  Rhodes  &c.  Co.  v.  Weeden, 

lee  V.  Greenlee,  22  Pa.  St.  225;  Ait-  108  Ala.  252,  19  So.  318;  Shakespeare 

kin  V.  Young,  12  Pa.  St.  15;   Wilde  v.    Alba,    76    Ala.    351;     Martin    v. 

V.  Fox,  1  Rand.  (Va.)  165;  Johnston  Blanchett,  77  Ala.   288;   Eubank  v. 

V.  Glancy,  4  Blackf.  (Ind.)  94.  May   &c.   Co.,   105   Ala.   629,   17   So. 

109. 


§'   162]  THE   INSTRUMENT   OF   DEMISE.  200 

leasing  and  its  subsequent  reduction  to  writing  is  incidental  only.'^^ 
A  landowner  agreed  by  parol  to  lease  land  to  another  for  a  term  of 
years,  to  begin  in  the  future,  and  agreed  at  the  same  time  to  put/ 
such  parol  contract  in  writing  but  no  consideration  passed  between 
the  parties.  It  was  held  that  either  party  could  disregard  the  parol 
contract.  When  the  lessee  went  on  the  land  at  the  commencement  of 
the  term  named  in  the  parol  agreement  without  the  request  of  the 
lessor,  his  possession  thus  obtained  would  not  give  him  any  rights 
under  such  parol  contract.  The  parol  contract  was  void,  and  unless 
it  was  partly  performed  by  one  of  the  parties  at  the  request  of  the 
other  it  created  no  obligation.^^^  The  proposed  lease  was  within  the 
statute  of  frauds ;  hence  the  parol  agreement  to  lease  could  give  it  no 
force,  and  to  predicate  anything  whatever  of  that  intended  lease  was 
error.  Either  party  had  a  right  to  refuse  its  execution  and  the  de- 
fendant was  guilty  of  no  fraud  in  availing  himself  of  that  right."^ 
Not  only  was  the  lease  within  the  statute  of  frauds  but  the  agreement 
itself  was  within  that  statute  because  it  purported  to  transfer  an  inter- 
est in  land.  When  a  party  to  a  parol  agreement  for  a  lease  seeks  to  en- 
force it  specifically  in  equity,  he  can  rely  on  the  equitable  doctrine  of 
part  performance  to  take  the  parol  agreement  out  of  the  statute  of 
frauds.  The  distinct  ground  upon  which  courts  of  equity  interfere  in 
cases  of  this  sort  is  that  otherwise  one  party  would  be  able  to  practice  a 
fraud  upon  the  other.  The  property  owner  can  enforce  the  agreement 
when  he  has  been  led  to  do  acts  upon  the  faith  of  it  with  the  knowl- 
edge and  acquiescence  of  the  other  party.^^^  In  one  case  the  lessor 
explicitly  refused  to  make  a  verbal  lease,  and  it  was  mutually  agreed 
that  a  lease  on  certain  specified  terms  should  be  made  in  writing. 
Under  these  circumstances  entry  into  possession  by  the  lessee  was  not 
sufficient  to  show  that  the  verbal  agreement  for  a  written  lease  was 
of  itself  a  lease  in  praesenti  which  could  be  taken  out  of  the  statute 
by  part  performance.  To  give  this  construction  to  the  agreement 
would  be  to  bind  the  lessor  by  a  verbal  lease  when  he  refused  to  make 
one.  The  verbal  contract  may  be  a  valid  agreement  for  a  written 
lease,  for  a  breach  of  which  an  action  for  damages  might,  under  cer- 
tain circumstances,  lie,  but  it  is  not  of  itself  a  lease  in  praesenti.'' ^^ 

"'  Grigsby  v.  Western  &c.  Tel.  Co.,        '°*  Seaman     v.     Ashchermann,     51 
5  S.  Dak.  561,  59  N.  W.  734.  Wis.  678,  8  N.  W.  818. 

'°» Pulse  v.  Hamer,  8  Ore.  251.  ""  Potter  v.  Mercer,  53  Cal.  667. 

'"  Sausser  v.  Steinmetz,  88  Pa.  St. 
324. 


201 


RECORDING. 


[§  163 


XI.    Recording. 

§  163.  Statutory  provisions. — Statutes  regarding  the  requirements 
for  recording  transfers  of  real  estate  vary  in  phraseology.  A  common 
form  is  to  require  that  all  transfers  be  recorded  to  be  good  against 
subsequent  purchasers  for  value  except  leases  for  a  short  period.  This 
period  is  usually  fixed  at  one  year,  though  an  exception  in  favor  of 
leases  for  a  term  of  three  years  is  not  unusual  and  in  some  states  the 
period  is  longer.^^"  In  other  statutes  no  mention  is  made  of  leases 
eo  nomine  but  the  expression  is  that  transfers  of  any  interest  in  land 
must  be  recorded.  Such  general  language  seems  to  include  leases 
without  regard  to  the  length  of  the  term.''"  In  California  the  form 
of  the  statute  is  that  all  conveyances  of  land  must  be  recorded.'^^  In 
construing  this  act  it  was  held  that  a  lease  for  five  years  was  a  convey- 
ance of  the  land  within  the  definition  of  the  code  and  the  interest  in 
the  land  which  was  thereby  created  in  the  lessee,  though  limited  ta 
a  right  to  take  the  profits  of  the  land,  was  void  as  against  a  pur- 


'*"  Leases  for  more  than  one  year 
are  not  valid  without  being  recorded 
in  California,  Connecticut,  Florida, 
Hawaii,  Idaho,  Montana,  Nebraska, 
North  Dakota,  Oklahoma,  South 
Carolina,  South  Dakota,  Vermont. 
Leases  for  more  than  two  years  are 
not  valid  without  being  recorded  in 
Rhode  Island.  Leases  for  more  than 
three  years  are  not  valid  without 
being  recorded  in  Indiana,  New 
York,  North  Carolina,  Ohio,  Ten- 
nessee, Wisconsin,  Wyoming.  Leases 
for  more  than  five  years  are  not 
valid  without  being  recorded  in 
Kentucky,  Virginia,  West  Virginia. 
Leases  for  more  than  seven  years 
are  not  valid  without  being  recorded 
in  Maine,  Maryland,  Massachusetts, 
New  Hampshire.  Leases  for  more 
than  twenty-one  years  are  not  valid 
without  being  recorded  in  Delaware, 
Pennsylvania.  A  lease  for  less  than 
twenty-one  years,  when  accompanied 
by  possession  by  the  lessee,  need 
not  be  recorded,  Williams  v.  Down- 
ing, 18  Pa.  St.  60.  In  Louisiana  the 
rule  is  that  an  unrecorded  act  of 


lease  of  real  estate  produces  no  legal 
effect  as  to  third  persons.  Anderson 
V.  Comeau,  33  La.  Ann.  1119.  For- 
merly in  North  Carolina  a  lease  of 
land  for  a  term  of  years  need  not 
be  registered.  Burnett  v.  Thompson,. 
3  Jones  L.  (N.  Car.)  113;  Wall  v. 
Hinson,  1  Ired.  L.  (N.  Car.)  276. 
See,  Rev.  Code  Ch.  37,  §  26,  requir- 
ing that  leases  which  must  be  in 
writing  must  be  registered.  In 
Washington  all  deeds  must  be  re- 
corded (Ballinger's  Am.  Codes  1897, 
§  4535)  and  all  conveyances  of  any 
interest  in  real  estate  shall  be  by 
deed  (Ibid.  §  4517)  except  that 
leases  for  any  term  not  exceeding 
one  year  are  valid  without  acknowl- 
edgement or  seal. 

'"*  Such  seems  to  be  the  case  in 
Alabama,  Arkansas,  Arizona,  Alaska, 
Colorado,  Georgia,  Iowa,  Illinois, 
Kansas,  Michigan,  Minnesota,  Mis- 
sissippi, Missouri,  Nevada,  New  Mex- 
ico, Oregon,  Texas. 

'«=^Garber  v.  Gianella,  98  Cal.  527, 
33  Pac.  458. 


163] 


THE   INSTRUMENT    OF   DEMISE. 


203 


chaser  by  reason  of  the  failure  to  have  it  recorded  as  if  it  had  been  an 
unrecorded  conveyance  in  fee.'^*'^  The  rule  was  the  same  though  the 
lease  was  determinable  on  thirty  days'  notice  by  either  party.^^*  . 
However,  where  the  owner  of  land,  after  conveying  the  title  to  the  fee 
leased  it  to  a  third  person  for  a  year,  the  lessee  was  not  considered  as 
a  purchaser  under  it,  without  notice.  This  lease  was  not  a  convey- 
ance within  the  meaning  of  the  statute  and  the  lessee  could  not  ac- 
quire any  better  right  to  hold  the  premises  than  the  lessor  had.^*'^ 

In  New  Jersey  a  lessee  is  given  the  privilege  of  recording  certain 
leases,  but  is  no  worse  off  than  he  would  be  at  common  law  if  he 
fails  to  do  soJ®*'  In  Louisiana  a  lessee  who  has  paid  rent  in  advance 
must  record  his  lease  to  protect  himself  against  a  transferee  of  the  re- 
version.    The  latter  would  be  entitled  to  collect  the  rent  reserved.'^" 

In  Kentucky  the  period  for  which  an  unrecorded  lease  is  valid  is 
set  at  five  years  and  a  lease  of  land  not  exceeding  five  years  is  good 
without  being  recorded  even  against  a  judgment  creditor  of  the  land- 
lord.^^®  But  an  unrecorded  lease  for  the  term  of  ten  years  cannot 
be  supported  for  five  years  on  the  ground  that  the  statute  only  re- 
quires leases  for  more  than  five  years  to  be  recorded.'^^^ 

The  question  suggests  itself  as  to  whether  the  exception  in  the  stat- 
ute of  frauds  in  favor  of  short  term  parol  leases  would  not  operate 
as  an  exception  from  the  requirement  for  recording  even  when  no 
express  exception  is  made  in  the  recording  statute.  Such  a  question 
could  only  arise  in  a  limited  number  of  states.  Some  foundation  for 
such  an  opinion  is  found  in  a  case  where  an  indictment  was  brought 
for  failure  to  comply  with  a  requirement  as  to  the  recording  of  a  rail- 
road lease.     The  indictment  failed  to  allege  that  the  lease  was  'm 


"^Commercial  Bank  v.  Pritchard, 
126  Cal.  600,  59  Pac.  130. 

''"Commercial  Bank  v.  Pritchard, 
126  Cal.  600,  59  Pac.  130. 

"^  Topping  v.  Parish,  96  Wis.  378, 
71  N.  W.  367,  Rev.  St.  of  Wis., 
§  2242. 

766 jjg^  Jersey:  The  registry  acts 
do  not  apply  to  leases.  The  first  in 
date  stands  first  in  point  of  right. 
Leases  under  seal  for  a  term  not 
less  than  two  years,  acknowledged 
or  proved,  may  be  recorded  (Rev.  p. 
157,  §  19),  but  the  statute  which 
authorizes  this  to  be  done  imposes 
no  penalty  for  not  doing  it.  Hodge 
V.   Giese,  43  N.  J.  Eq.  342,  11  Atl. 


484;  Hutchinson  v.  Bramhall,  42  N. 
J.  Eq.  372,  7  Atl.  873.  See,  Gen.  St. 
of  N.  J.  1895,  p.  857,  §  19.  By  the 
P.  L.  of  1898,  p.  670,  leaseholds  for 
not  less  than  two  years  are  author- 
ized to  be  recorded.  So  a  mortgage 
of  a  ten  year  leasehold  should  be  re- 
corded as  a  mortgage  affecting  real 
estate.  Lembeck  &c.  Co.  v.  Kelly,  63 
N.  J.  Eq.  401,  51  Atl.  794. 

'"Anderson  v.  Comeau,  33  La. 
Ann.  1119. 

'«« Locke  V.  Coleman,  4  T.  B.  Mon. 
(Ky.)  315,  321;  Casey  v.  Gregory, 
13  B.  Mon.  (Ky.)  505. 

"^Clift  v.  Stockdon,  4  Litt.  (Ky.) 
215. 


203  RECORDING.  [§    164 

writing  and  was  held  bad  in  consequence  because  of  the  obvious  im- 
possibility of  recording  an  oral  lease.""  Nevertheless  it  appears  to  be 
quite  certain  that  the  obligation  to  record  a  lease  to  afEect  the  rights 
of  a  third  person  could  not  be  avoided  by  leaving  the  lease  in  parol 
instead  of  reducing  it  to  writing.  It  might  very  consistently  be 
held  that  a  lease  which  was  good  between  the  parties  though  not  in 
writing,  must  be  put  in  writing  and  recorded  to  be  valid  against  a 
bona  fide  purchaser  for  value.  Such  seems  to  be  the  effect  of  the 
statutes  in  certain  states. 

The  statutes  which  require  that  leases  to  run  for  more  than  a  cer- 
tain term  shall  be  recorded,  usually  attach  no  condition  as  to  transfer 
of  possession  in  order  that  a  lease  for  a  shorter  term  shall  be  valid 
without  being  recorded."^  So  the  requirement  as  to  the  value  of  the 
rent  reserved  which  is  sometimes  made  necessary  to  render  a  parol 
lease  valid  is  not  generally  made  a  condition  on  which  an  unrecorded 
lease  will  take  effect.'^^^ 

A  lease  of  growing  trees  for  the  purpose  of  gathering  turpentine 
therefrom  is  a  conveyance  of  an  interest  in  real  estate  which  must  be 
recorded.^'^ 

§  164.  Validity  of  unrecorded  instruments. — It  is  clear  that  an  un- 
recorded deed  or  lease  conveys  a  title  as  between  the  parties.'^*  It 
has  further  been  declared  that  the  statutes  relative  to  recording  were 
not  intended  to  protect  persons  who  claim  no  right,  title,  or  inter- 
est in  the  premises  conveyed  by  the  unrecorded  instrument."^  A 
lease  in  due  form  of  law,  and  in  all  respects  complete  and  perfect  was 
objected  to  because  it  had  not  been  recorded  in  the  records  of  the 
town  in  which  the  premises  lay.  It  was  insisted  that  it  was  by  the 
statute  declared  to  be  absolutely  void  except  as  to  the  lessors;  the 
parties  thus  insisting  claimed  nothing  under  the  lessors,  and  were 
not  deceived  or  in  any  way  injured  by  the  lease,  but  asserted  that  it 

""Commonwealth    v.    Chesapeake  of  Del.  Rev.  Code  1852  as  amended 

&c.  R.  Co.,  101  Ky.  159,  40  S.  W.  250.  1893. 

'"  In  Pennsylvania  possession  '"  Miliken  v.  Faulk,  111  Ala.  658, 

must    accompany    the     unrecorded  20  So.  594. 

lease  to  render  it  valid.     Pepper  &  "*  Dole     v.     Thurlow,     12     Mete. 

]  9wis  Dig.  of  Laws  of  Pa.,  p.  1568,  (Mass.)    157;    Earle   v.    Fiske,    103 

§  90.  Mass.  491;    Smythe  v.  Sprague,  149 

'"'  In  Delaware  a  fair  rent  must  be  Mass.  310,  21  N.  E.  383. 

reserved    and    possession    must    be  '"  Anthony  v.  New  York  &c.  R.  Co., 

taken  by  the  tenant  in  order  that  an  162  Mass.  60,  37  N.  E.  780;  Beach  v. 

unrecorded     lease     for     twenty-one  Morgan,  67  N.  H.  529,  41  Atl.  349. 
years  be  valid.     Ch.  83,  §  17,  Laws 


§    164]  THE    INSTRUMENT    OF   DEMISE.  204 

was  imperfect  and  void.  The  answer  was  that  the  instrument  was  not 
imperfect  and  void.  It  had  every  legal  requisite  of  a  conveyance. 
Kecording  is  no  part  of  the  conveyance  itself  and  to  allow  a  stranger 
who  has  no  manner  of  interest  in  the  question  to  set  up  a  statute, 
which  requires  deeds  and  leases  to  be  recorded,  merely  to  give  public 
notice  that  creditors  and  bona  fide  purchasers  may  not  be  deceived 
and  cheated,  is  unreasonable  and  preposterous.'^^  ^  In  one  case  an 
assignee  of  a  lease  brought  an  action  of  assumpsit  for  rent,  not- 
withstanding the  fact  that  the  lease  was  a  sealed  instrument,  his 
theory  being  that  it  was  void  as  a  lease  except  as  between  the  im- 
mediate parties  to  it,  because  it  was  not  recorded.  But  having  notice 
of  the  lease  before  the  assignment  of  the  reversion,  the  statute  in  re- 
gard to  recording  had  no  application,  and  as  a  formal  transfer  of  the 
lease  had  accompanied  the  assignment,  the  action  should  have  been 
debt  or  covenant.'^'^^  So  in  a  jurisdiction  where  leases  for  more  than 
one  year  were  not  valid  without  record,  a  lease  for  five  years,  unre- 
corded and  unacknowledged,  was  held  to  be  good  between  a  lessee 
and  the  assignee  of  the  lessor  when  the  latter  did  not  choose  to  avoid 
it.^" 

But  the  statute  in  Maryland  provides  that  no  deed  of  real  property 
shall  be  valid  for  the  purpose  of  passing  title  unless  acknowledged  and 
recorded.''^ ^  A  lease  for  more  than  seven  years  would  pass  no  title, 
therefore,  unless  it  was  recorded,  and  so  would  not  furnish  any  consid- 
eration for  the  covenants  of  the  lessee  to  pay  rent.  Consequently  it  was 
held  in  that  state  that  an  action  of  covenant  for  rent  could  not  be 
maintained  by  the  lessor  on  an  unrecorded  lease.  But  an  action  for 
use  and  occupation  could  be  brought  for  such  period  as  the  lessee  was 
in  actual  occupation. '^^''  The  effect  of  this  doctrine  is  that  an  interest 
in  land  for  a  term  exceeding  seven  years  cannot  be  transferred  by  the 
owner  otherwise  than  in  the  way  provided  in  the  act,  and  no  acts 
in  pais  are  competent  for  that  purpose.  The  lessee's  liability  to  pay 
rent  would  continue  until  some  act  was  done  by  him  legally  operative 
to  vacate  the  premises. ^^^ 

The  general  doctrine  seems  to  be  that  recording  a  lease  is  not  neces- 

"*  Barnum    v.    Landon,    25    Conn.  ™  Gen.  Pub.  Laws,  vol.  1,  p.  255. 

137;    overruling  French  v.  Gray,   2  ^'"Anderson  v.  Critcher,  11  Gill.  & 

Conn.  92.  J.  (Md.)  450. 

'"McCardell  v.  Williams,  19  R.  I.  ''« Peter  v.    Schley,   3   Harr.  &  J. 

701,  36  Atl.  719;  Anderson  v.  Harris,  (Md.)    211;   Mayhew  v.  Hardesty,  8 

1  Bail.  L.  (S.  Car.)  315.  Md.  479,  495;   Polk  v.  Reynolds,  31 

"« Baldwin    v.    Walker,    21    Conn.  Md.  106,  112. 
168,  182. 


205  RECORDING.  [§§   165,  166 

sary,  even  against  the  claims  of  third  parties,  where  the  lessee  goes 
into  actual  possession  of  the  premises,  for  that  is  suflBcient  notice  of 
his  rights.''®^ 

§  165.  Place  of  record. — It  has  never  been  questioned  but  that  a 
lease  for  a  term  should  be  recorded,  when  recording  is  required, 
among  the  real  estate  records.  But  the  instrument  of  demise  may  be 
of  a  dual  nature,  for  a  reservation  in  a  lease  of  a  specific  lien  on  per- 
sonalty is  equivalent  to,  and  is,  in  effect,  a  chattel  mortgage.'^  *^  Even 
where  the  same  instrument  affects  both  real  and  personal  property,  a 
recording  in  the  records  of  real  estate  has  been  held  to  be  a  sufficient 
recording  of  the  instrument  as  a  chattel  mortgage.  A  lease  while  a 
chattel  is  a  chattel  real  and  there  is  a  difference  between  it  and  chat- 
tels personal.  A  document  demising  land  for  a  term  of  years  is  cer- 
tainly an  instrument  which  "affected"  real  estate  in  the  sense  of  the 
recording  statute.  It  was  therefore  necessary  to  the  protection  of  the 
lessor  that  it  should  be  recorded  in  the  real  estate  records,  and  being 
thus  recorded  for  that  purpose,  it  made  a  proper  recording  of  the  lien 
upon  the  personal  chattels  covered  by  the  lease.'^^*  The  statute  under 
consideration,  while  providing  for  separate  registration,  did  not  apply 
to  cases  where  the  instrument  conveyed  both  kinds  of  property  but 
only  directed  separate  recording  in  a  chattel  record  where  the  instru- 
ment conveyed  "personal  property  alone." 

§  166.  Record  of  sublease. — In  general  the  same  principles  apply 
to  a  leasehold  carved  out  of  another  leasehold  estate  as  one  granted 
by  an  owner  in  fee.  It  follows  that  a  sublease  must  be  recorded 
where  an  original  lease  of  equal  duration  must  be  put  on  record  to 
bind  third  persons,  such  as  an  assignee  for  value  of  the  original  lease- 
hold who  takes  without  notice.  The  assignee  finding  by  the  record 
a  clear  lease  to  the  lessors  ought  not  to  be  bound  by  any  parol  license 
from  their  lessors.  Had  the  lessors  given  a  deed  of  the  premises  be- 
fore they  conveyed  to  the  assignee,  still,  without  any  notice  of  such 
a  deed,  and  in  the  absence  of  any  record  of  it,  the  assignee  would 

'^^Disbrow  v.  Jones,  Harr.  (Mich.)  ^*^  Jones    on     Chattel     Mortgages, 

48;  Corey  v.  Smalley,  106  Mich.  257,  §  13;  Attaway  v.  Hosliinson,  37  Mo. 

64  N.  W.  13;  Kittle  v.  St.  John,  10  App.  132;  Wright  v.  Bircher,  5  Mo. 

Neb.  605,  7  N.  W.  271;    Haworth  v.  App.  322. 

Taylor,  108  111.  275;  Chamberlain  v.  '"Faxon   v.    Ridge,    87   Mo.    App. 

Collinson,  45  Iowa  429;  Leebrick  v.  299;   Jennings  v.  Sparkman,  39  Mo. 

Stable,  68  Iowa  515,  27  N.  W.  490;  App.  663.    See  also,  Anthony  v.  But- 

Payson  v.  Holden,  4  Ky.  L.  R.  352.  ler,  13  Pet.  (U.  S.)  423. 


§•   167]  THE    INSTRUMENT   OF   DEMISE.  206 

be  protected,  and  surely  a  parol  lease  or  license  can  have  no  greater 
effect  than  a  deed  not  recorded.^^^ 

The  obligation  to  record  a  sublease  does  not  give  to  such  record  any 
effect  on  the  original  lease.  No  constructive  notice  is  given  of  the 
rights  of  a  lessee  under  an  unrecorded  lease  by  reason  of  the  record 
of  a  lease  from  him  to  a  second  lessee,  and  a  grantee  of  the  original 
lessor  is  not  affected  with  constructive  notice  of  the  rights  of  such 
first  lessee,  although  her  deed  is  expressly  subject  to  the  second  lease.'^^*' 

§  167.  Computation  of  time. — A  lease  for  years,  although  the  term 
thereby  granted  be  for  less  than  seven  years,  yet  being  made  to  com- 
mence at  a  future  day,  if  it  is  to  endure  more  than  seven  years  from 
the  making  thereof,  is  within  the  requirements  of  a  statute  concern- 
ing the  recording  of  leases  for  more  than  seven  years.^"  So  a  lease 
for  five  years,  with  the  right  to  have  a  renewal  for  five  years  more  is 
as  much  within  the  mischief  which  the  statute  seeks  to  remedy  as  a 
lease  for  a  term  of  ten  years,  and  the  reasons  for  requiring  the  latter  to 
be  recorded  apply  equally  to  the  other,  so  far  as  the  renewal  term  is 
concerned.  It  was  enough  for  the  purpose  of  deciding  the  case  where 
this  question  arose  to  hold  that  as  to  any  extension  or  agreement  for 
renewal  which  would  carry  the  possession  of  the  lessee  to  more  than 
seven  years  from  the  making  of  the  instrument,  such  extension  or 
agreement  for  renewal  was  within  the  meaning  of  the  statute.  The 
court  found  it  unnecessary  to  decide  whether  such  a  lease  would  be 
wholly  void  as  to  a  bona  fide  purchaser,  or  whether  it  would  be  good 
for  the  first  term  of  seven  years  or  less.'^^^ 

785  BUJ.J.  y  Spencer,  26  Conn.  159.  '"  Chapman  v.  Gray,  15  Mass.  439. 

''"Garber  v.  Gianella,  98  Cal.  527,  "« Toupin  v.  Peabody,  162  Mass. 
33  Pac.  458.  473,  39  N.  E.  280. 


CHAPTEE  III. 


KINDS  OF  TENANCY. 


1.  Estates  for  Years,  §§  168-173. 

2.  Tenancy  at  Will,  §§  174-191. 

3.  Tenancy     from     Year     to     Year, 

192-214. 


4.  Tenancy  from  Month  to  Month, 

§§  215-219. 
6.  Tenancy    at    Sufferance,    §§  220- 

230. 
6.  Statutory  Provisions,  §§  231-250, 


I.     Estates  for  Years. 

§  168.  The  chattel  interest  known  as  a  term  for  years  is  a  fa- 
miliar and  common  form  which  the  relationship  of  landlord  and  ten- 
ant assumes.  According  to  the  common  law  notion,  this  was  of  less 
dignity  than  a  life  estate  which  was  a  freehold;^  the  term  for  years 
was  not  an  interest  in  real  estate,  it  was  a  mere  chattel  interest,  known 
as  a  chattel  real  to  distinguish  it  from  chattels  personal.  The 
requisite  of  this  kind  of  estate  is  definiteness  of  duration,  while  there 
is  no  requirement  that  it  must  last  for  at  least  a  year.  It  has  been 
declared  to  be  common  learning  that  a  lease  for  a  period  of  less  than 
a  year  is  to  be  ranked  among  leases  for  years.^  So  a  lease  for  nine 
months,  or  any  time  certain  less  than  a  year,  is  a  lease  for  one  or  more 
years  within  the  meaning  of  a  landlord  and  tenant  law.^  ''Estates 
for  years,"  said  an  eminent  text  writer,  "embrace  such  as  are  for  a 
single  year,  or  for  a  period  still  less,  if  definite  and  ascertained,  as  a 


^  The  doctrine  of  the  common  law 
that  an  estate  in  land  for  life  is  su- 
perior to  an  estate  for  years,  no  mat- 
ter how  long  its  duration  may  be, 
has  no  relation  to  a  deed  conveying 
the  unexpired  portion  of  a  term  of 
ninety-nine  years,  renewable  forev- 
er, and  reserving  to  the  grantor  the 
use  and  enjoyment  of  the  property 
during  his  natural  life.  Such  a  gift 
would  be  governed  by  the  rules  of 
law  in  regard  to  future  limitations 
of  personal  property.    In  this  case 


it  was  held  that  the  limitation  was 
good.  Culbreth  v.  Smith,  69  Md. 
450. 

-  Casey  v.  King,  98  Mass.  503,  cit- 
ing Co.  Lit.  52  b.,  4  Kent.  Com.  6th 
ed.  85. 

^  Shaffer  v.  Sutton,  5  Binn.  (Pa.) 
228,  citing  2  Bl.  Com.  140,  where  it 
is  said  that  "if  the  lease  be  but  for 
half  a  year,  or  a  quarter  or  any  less 
time,  the  lessee  is  respected  as  a 
tenant  for  years,  and  is  styled  so  in 
some  legal  proceedings." 


207 


§    169]  KINDS    OF    TENANCY.  208 

term  for  a  fixed  number  of  weeks  or  months,  as  well  as  for  any  definite 
number  of  years,  however  great."* 

Where  the  term  and  duration  of  a  tenancy  is  fixed  and  certain,  it  is 
an  estate  for  years  and  not  a  tenancy  from  year  to  year.  A  lease  for  a 
definite  term  of  three  years,  with  a  covenant  by  the  tenant  to  surren- 
der possession  at  the  end  of  the  term,  contained  a  provision  that  if 
the  tenant  continued  to  occupy  he  should  not  be  turned  out  until  the 
end  of  a  year,  and  then  only  on  three  months'  notice.  This  did  not 
entitle  the  tenant  to  three  months'  notice  prior  to  the  set  limitation 
for  the  term,  WTien  the  contract  said  "if  the  tenant  should  continue" 
it  meant  unquestionably  a  lawful  continuance,  and  not  in  express  vio- 
lation of  the  covenant  to  surrender  possession  demanded  by  the  land- 
lord.^ 

§  169.  Term  for  years  or  from  year  to  year. — A  lease  for  a  year 
certain  provided  that  the  agreement  was  to  run  as  long  as  the  parties 
agreed.  If  any  force  at  all  were  to  be  given  to  this  clause,  it  must  be 
that  the  tenancy  of  one  year  might  be  continued  if  the  parties  agreed, 
for  it  could  not  be  said  that  it  limited  the  original  term  to  less  than 
one  year.  The  meaning  of  the  language  was,  in  the  first  place,  that 
when  the  stated  term  had  expired,  the  tenant  could  continue  to  hold 
for  an  indefinite  time,  so  long  as  he  and  the  landlord  agreed.  On 
the  other  hand,  the  meaning  was  that  if  the  tenant  held  over,  it  must 
be  subject  to  a  time  limited  by  an  agreement  with  the  landlord,  or  if 
no  agreement  was  made,  then  subject  to  the  will  of  the  landlord.  In 
any  event  it  was  for  no  longer  time  than  the  landlord  saw  fit  to  make. 
It  was  not  necessary  that  the  landlord  should  give  his  tenant  notice 
any  definite  length  of  time  before  his  year  expired  that  he  could  not 
remain  longer.  If  the  tenant  held  beyond  the  year,  after  receiving 
notice  that  he  must  give  up  possession,  he  held  possession  unlawfully.^ 
A  contrary  result  was  reached  by  the  Nebraska  court  in  regard  to  a 
lease  for  a  year  certain  which  further  provided  that  "if  either  party 
elects  to  discontinue  the  lease,  the  party  electing  so  to  discontinue 
shall  give  the  other  party  six  months'  notice  prior  to  the  time  of 
the  expiration  of  the  lease."  The  court  held  this  created  a  tenancy 
from  year  to  year.  "Looking  alone  to  the  first  paragraph,  it  would 
seem  to  have  been  the  intention  to  limit  the  terms  of  the  relationship 
to  one  year,  but  from  the  second  paragraph,  or  regarding  the  two 

*1   Washburn  on  Real  Estate,  p.        °  MacGregor  v.  Rawle,  57  Pa.   St. 
291,  quoted  in  Brown  v.  Bragg,  22     184. 

Ind.  122.  "Dunphy   v.   Goodlander,   12    Ind. 

App.  609,  40  N.  E.  924. 


209  ESTATES    FOR   YEARS.  [§    170 

iogether,  we  are  all  of  the  opinion  that  there  is  evidence  of  an  inten- 
tion on  the  part  of  the  makers  of  the  instrument  that  in  order  to 
terminate  the  lease  at  the  end  of  the  first,  or  of  any  subsequent  year, 
by  either  party  there  should  be  six  months'  notice  given  to  the  other."^ 
A  lease,  to  hold  from  the  first  day  of  April  from  year  to  year,  so  long 
as  both  lessor  and  lessee  should  agree,  is  not  necessarily  a  lease  for 
more  than  one  year.  Such  a  result  follows  only  where  from  the  whole 
lease  it  is  apparent  that  the  parties  contemplated  a  lease  of  more  than 
one  year  without  specifying  the  whole  duration  of  the  lease.  In  such 
cases  it  is  held  that  the  lease  would  last  at  least  two  years.  But  the 
mere  expression  "from  year  to  year"  does  not  necessarily  imply  more 
than  from  the  commencement  of  one  year  to  the  commencement  of 
another.®  Wliere  premises  are  leased  by  a  landlord  until  he  can  sell 
them,  the  lease  ends  upon  such  a  sale,  and  a  notice  to  quit  is  unneces- 
sary.^ It  makes  no  difference  by  whose  act  the  contingency  was  to 
arise.  So  where  the  tenancy  was  to  continue  at  a  monthly  rent  till 
the  tenant  found  other  quarters,  the  removal  of  the  tenant  to  other 
premises  ended  the  term  and  no  notice  to  quit  was  necessary.  The 
tenant  could  not  be  charged  with  liability  for  rent  as  a  tenant  from 
month  to  month.  ^^ 

§  170.  A  lease,  on  account  of  uncertainty  of  duration,  might  be 
inoperative  for  any  other  purpose  than  the  creation  of  an  estate  at 
will.  A  lease  to  be  valid  for  any  greater  estate  must  be  certain  as  to 
its  commencement  and  duration.  So  a  lease  to  run  until  such  time 
as  the  lessor  is  prepared  to  improve  the  ground  with  new  buildings^ ^ 
or  until  the  property  is  sold  creates  a  tenancy  at  will.^^  It  is  unques- 
tionably the  law,  however,  that  a  term  greater  than  an  estate  at  will 
may  be  limited  conditionally  and  yet  the  condition  be  uncertain.  But 
in  such  case  there  must  always  be  a  term  certain,  though  it  may  be 
terminated  sooner  by  the  happening  of  the  contingency.^^  It  has 
been  suggested  also  that  a  tenancy  at  will  could  be  a  conditional  estate 
to  be  terminated  on  the  happening  of  an  event  without  the  giving  of 

^ Brady  v.  Flint,  23  Neb.  785,  794,  "Lea  v.  Hernandez,  10  Tex.  137; 

37  N.  W.  647,  per  Cobb,  J.  Murray  v.  Cherrington,  99  Mass.  229. 

"  Fox  V.  Nathans,  32  Conn.  348,  in  ^^  Corby    v.    McSpadden,    63     Mo. 

the  words  of  Button,  J.  App.    648;     Shaw    v.    Hoffman,    25 

"Clark  V.  Rhoads,  79  Ind.  342.  Mich.  162,  172;  Munigle  v.  Boston,  3 

"Hoffman   v.    McCollum,   93    Ind.  Allen    (Mass.)    230;   Miller  v.  Levi, 

326.  44  N.  Y.  489. 

"Corby    v.    McSpadden,    63    Mo. 
App.  648,  supra  §§  111-119. 

Jones  L.  &  T.— 14 


§    171]  KINDS    OF   TENANCY.  210 

notice,  or  by  notice  in  the  ordinary  form.^*  In  a  lease  of  this  nature 
a  school  teacher  was  engaged  to  teach  a  school,  and  he  was  given  the 
use  of  a  school  building  "so  long  as  he  kept  a  good  school."  This 
was  held  to  be  a  tenancy  at  will  with  a  conditional  limitation.  The 
court  held  that  as  the  owners  had  ejected  him  before  terminating  the 
tenancy  by  giving  the  statutory  notice  provided  for  terminating 
tenancies  at  will,  he  could  hold  them  liable  in  damages,  unless  they 
showed  he  had  not  taught  a  good  school.  The  effect  of  ^the  court's 
holding  was  that  notwithstanding  the  limitation,  the  owners  could 
terminate  the  tenancy  at  any  time  regardless  of  whether  he  was  teach- 
ing a  good  school,  by  giving  the  statutory  notice.^^  Where  a  tenancy 
at  will  is  created  by  a  parol  lease  and  occupation  thereunder,  a  con- 
ditional limitation  in  such  lease  will  be  valid  and  the  happening  of 
the  contingency  changes  the  tenancy  at  will  into  one  at  sufferance. ^^ 

One  occupying  as  a  servant  was  allowed  to  continue  in  possession 
on  payment  of  rent  until  his  wife  was  able  to  be  moved.  It  was  held 
this  was  not  a  tenancy  at  will  but  a  tenancy  till  the  happening  of  a 
future  contingent  event,  and  no  notice  to  quit  was  necessary  after  the 
wife  recovered. ^^  It  was  not  necessary  to  decide  that  there  was  no 
tenancy  at  will  here.  All  that  was  necessary  to  the  decision  was  to 
hold  that  the  happening  of  the  contingency  ended  the  term  without 
notice.  In  another  case  the  agreement  was  that  a  servant  should 
cease  to  occupy  as  tenant  as  soon  as  his  employment  ceased.  It  was 
urged  that  this  created  a  tenancy  at  will,  and  that  thirty  days'  notice 
to  quit  was  necessary.  Without  passing  on  the  question  of  tenancy, 
the  court  decided  the  question  on  a  statute  providing  that  when  an 
express  agreement  was  made,  the  tenancy  should  cease  at  the  time 
agreed  upon  without  notice.  ^^ 

§  171.  A  lease  for  years  is  a  chattel  real  only  and  goes  to  the  ad- 
ministrator and  may  be  sold  by  him  without  an  order  of  court  as  is 
required  in  cases  of  freehold  and  fee  estates.^^     At  common  law  there 

"Goodenow  V.  Allen,  68  Me.  308.  902;   Faler  v.  McRae,  56  Miss.  227; 

"Ashley     v.     Warner,     11     Gray  Smith  v.   Dodds,   35    Ind.   452,   456; 

(Mass.)  43.  Schee  v.  Wiseman,  79  Ind.  389,  392; 

"^Hollis  V.  Pool,  3  Mete.    (Mass.)  Cunningham  v.  Baxley,  96  Ind.  367, 

350.  369;   Warner  v.  Tanner,  38  Ohio  St. 

"Doyle  V.  Gibbs,  6  Lans.   (N.  Y.)  118;    Gay,   Ex   parte,    5    Mass.    419; 

180.  Chapman  v.  Gray,  15  Mass.  439,  445; 

''Grosvenor  v.  Henry,  27  Iowa  269.  Brewster  v.  Hill,  1  N.  H.  350;  Mur- 

^'Lake   v.   Campbell,   18    111.   106;  dock  v.  Ratcliff,  7  Ohio  119,  122. 
Mark  v.  North,  155  Ind.  575,  57  N.  E. 


211  ESTATES    FOR   TEARS.  [§'  171 

is  no  doubt  upon  this  question,  as  the  rule  is  universal  that  such  leases 
would  vest  in  the  executor  or  administrator  as  personal  property.^" 
Except  so  far  as  they  have  been  modified  by  express  legislation,  a 
leasehold  interest,  though  a  chattel  real,  is  personal  estate  and  subject 
to  the  rules  governing  that  species  of  property. ^^  The  rent  is  person- 
alty, also,  and  the  right  to  collect  and  distribute  it  is  in  the  personal 
representative  of  the  decedent.-^  Leases  for  terms  of  years  were  of  a 
very  low  degree  of  interest  in  their  origin  and  subject  to  be  destroyed 
at  the  pleasure  of  the  lessor  by  suffering  a  common  recovery  until  this 
was  changed  by  an  early  English  statute.-^  They  grew  into  an  estate 
of  greater  consequence  after  that  statute  and  became  a  settled,  perma- 
nent interest  maintainable  as  other  rights  and  interests  by  its  appro- 
priate remedies.  Still  it  remains  a  chattel  real  only  to  this  day.-* 
An  illustration  of  how  a  term  for  years  is  regarded  as  personal  prop- 
erty is  found  in  a  case  where  an  administrator  was  bringing  a  suit  to 
set  aside  a  lease  executed  by  his  decedent.  It  was  held  that  the  action 
could  be  brought  in  the  county  in  which  the  defendant  resided  with- 
out regard  to  the  location  of  the  leased  property,  although  in  real 
actions  respecting  the  title  to  real  estate,  venue  would  be  determined 
by  the  situs  of  the  property.-^ 

.  Another  respect  in  which  the  nature  of  a  term  for  years  as  personal 
property  rather  than  real  estate  is  apparent  is  in  regard  to  a  lien  for 
purchase  money  upon  the  assignment  of  such  a  leasehold  interest. 
Even  where  such  a  lien  is  allowed  on  sales  of  real  estate,  it  could  not 
be  set  up  after  a  sale  of  a  leasehold.  A  lease  for  a  term  of  years  is 
regarded  as  personal  property  in  such  a  case,  and  the  vendor  of  per- 
sonal property  has  no  general  lien  for  unpaid  purchase  money  upon 
such  property  after  he  has  parted  with  possession.^'' 

The  length  of  the  term  does  not,  moreover,  change  the  nature  of 
the  leasehold  as  a  chattel  real.  It  is  only  personal  estate  if  it  be  for 
a  term  of  a  thousand  years.  •  Falling  below  the  character  and  dignity 
of  a  freehold,  it  is  regarded  as  a  chattel  interest,  and  is  governed  and 
descendible  in  the  same  manner.-'^  Thus  it  was  held  in  one  case  that 
an  administrator  could  sell  land  held  by  his  s intestate  under  a  lease 

="  Mulloy  V.  Kyle,  26  Neb.  313.  41  -'  21  Hen.  VIII,  cap.  15. 

N.    W.    1117,    holding    common-law  ^'  Lake  v.  Campbell,  18  111.  106. 

rule  was  unchanged  by  statute.  ='  Mark  v.  North,  155  Ind.  575,  57 

=•  Culbreth  v.  Smith,  69  Md.  450,  16  N.  E.  902. 

Atl.  112.  =''Cade  v.  Brownlee,  15  Ind.  369. 

-Antrey  v.  Antrey,  94  Ga.  579,  20  "2  Kent.  Com.  342.  Co.  Litt.  46  a; 

S.  E.  431.  Flannery  v.  Rohrmayer,  49  Conn.  27. 


I 


172] 


KINDS    OF    TENANCY. 


212 


for  nine  hundred  and  ninety-nine  years  as  personal  property,^^  and 
in  another  that  a  term  for  nine  hundred  and  eighty-five  years  would 
pass  by  a  will  under  the  expression  "personal  estate."^^  Under  a  gen- 
eral devise  of  all  manors,  messuages,  lands,  tenements  and  heredita- 
ments, leasehold  messuages  will  not  pass  unless  it  appears  to  have  been 
the  evident  intention  of  the  devisor  that  they  should  pass,  even  though 
derived  under  leases  for  ninety-nine  years  renewable  forever,  and 
therefore  partaking  of  the  nature  of  perpetual  interests.  In  the  view 
of  the  testamentary  and  descent  laws  they  are  nevertheless  personal 
estate.^" 

§  172.  Sale  on  execution  as  a  chattel. — It  has  been  held  that  a 
leasehold  estate  for  a  term  of  years  may  be  sold  on  an  execution  issu- 
ing out  of  a  justice's  court  which  was  only  authorized  to  sell  person- 
alty. Every  species  of  property  comprehended  under  the  general 
name  of  chattels  was,  by  a  statute,  made  liable  to  execution  on  a  judg- 
ment rendered  by  a  justice.  A  term  for  years  was  a  chattel  interest. 
In  a  division  of  property  into  real  and  personal  it  was  to  be  classed 
among  the  latter.^  ^  The  opposite  result  was  reached  in  New  York 
under  a  statute  authorizing  "goods  and  chattels"  to  be  sold  on  an 


2'  Gay,  Ex  parte,  5  Mass.  419. 

^  Brewster  v.  Hill,  1  N.  H.  350. 

=»  Taylor  v.  Taylor,  47  Md.  295; 
Thompson  v.  Lawley,  2  B.  &  P.  303; 
Rose  v.  Bartlett,  Cro.  Car.  292; 
Knotsford  v.  Gardiner,  2  Atk.  450; 
Chapman  v.  Hart,  1  Ves.  Sr.  271; 
Pistol  V.  Riccardson,  1  H.  Bl.  26  n. 
In  Ohio  the  same  rule  was  held: 
Reynolds  v.  Commissioners  of  Stark 
County,  5  Ohio  204;  McLean  v. 
Rockey,  3  McLean  '(U.  S.)  238;  Mur- 
dock  V.  Ratcliff,  7  Ohio  119.  Doubts 
having  arisen  as  to  the  correctness 
of  this  rule,  the  case  of  Loring  v. 
Melendy,  11  Ohio  355,  was  reserved 
to  the  court  in  Bank  for  the  pur- 
pose of  settling  the  law.  The  case 
was  finally  decided  upon  another 
point;  but  the  court,  in  delivering 
their  opinion,  declared  the  law  to  be, 
that  permanent  leasehold  estates  are 
lands  subject  to  all  the  rules  and 
laws  which  attach  to  lands,  for  all 
purposes,   and  that  judgment  liens 


attached  to  them  as  to  lands.  But 
Lane,  C.  J.,  in  Boyd  v.  Talbert,  12 
Ohio  212,  expressed  his  apprehen- 
sions that  Loring  v.  Melendy  did  not 
conclude  the  point;  and  declared  his 
readiness  to  consider  it  when  it  be- 
came necessary.  In  the  Northern 
Bank  of  Kentucky  v.  Roosa,  13  Ohio 
334,  the  question  was  whether  judg- 
ments were  liens  upon  permanent 
leaseholds  for  one  year  without  levy, 
and  it  was  held  that  they  were. 
Under  the  Ohio  statutes,  the  court 
considered  that  for  all  purposes  con- 
nected with  the  laws  regulating 
judgments,  executions,  sales  and 
descents,  leasehold  estates  are  to  be 
regarded  as  if  they  were  freeholds 
and  not  chattels.  The  court  did  not 
decide  that  they  were  realty,  but 
only  that  for  certain  purposes  they 
were  to  be  considered  such. 

"Barr  v.   Doe,   6   Blackf.    (Ind) 
335. 


313  TENANCY   AT   WILL,  [§§    173,    174 

execution  by  a  justice.  It  was  decided  that  the  legislature  intended 
chattels  personal  only  and  did  not  wish  to  include  chattels  real.  This 
was  shown  by  the  further  provision  that  the  sheriff  levying  the  execu- 
tion should  take  the  chattels  into  his  custody.  Such  a  provision 
would  clearly  not  apply  to  leasehold  estates,  and  so  the  intention  of 
the  legislature  to  include  chattels  personal  only  was  apparent.^^ 

§  173.  Curtesy  and  dower. — At  common  law  there  could  be  no 
curtesy  or  dower  in  a  leasehold  estate,  however  long  the  term.^^  It 
has  been  expressly  decided  that  an  estate  in  land  for  the  term  of  nine 
hundred  and  ninety-nine  years,  subject  to  the  payment  of  an  annual 
rent,  is  personal  property,  and  that  the  widow  of  the  tenant  could  not 
claim  dower  in  it.^*  The  same  result  was  reached  in  regard  to  a  hus- 
band's right  to  an  estate  of  curtesy  in  his  wife's  leaseholds.^^ 

II.     Tenancy  at  Will. 

§  174.  An  estate  at  will,  in  the  primary  and  technical  sense  of 
that  expression,  is  created  by  grant  and  contract,  whereby  one  man 
lets  lands  to  another  to  hold  at  the  will  of  the  lessor. ^^^  In  a  tenancy 
of  this  kind  both  the  entry  and  occupation  are  lawful  but  for  no  defi- 
nite term  or  purpose,  subject  to  be  determined  at  common  law  by 
either  party  instanter  and  without  notice,  or  at  most  by  mere  demand 
of  possession  by  the  landlord.^^  This  kind  of  holding  is  distinguished 
on  the  one  hand  from  a  tenancy  at  sufferance  or  adverse  possession  by 
the  fact  that  it  is  under  an  agreement  from  the  landowner.  In  every 
case  a  tenancy  at  will  rests  on  the  actual  or  presumed  consent  of  the 
owner  of  the  premises.^^  On  the  other  hand,  a  tenancy  of  this  kind 
differs  from  terms  for  years  or  for  life  in  that  it  may  be  brought  to  an 
end  at  any  time  at  the  whim  of  the  parties,  instead  of  continuing  until 
the  happening  of  a  certain  event  or  the  lapse  of  a  certain  period  of 

"  Putnam   v.   Westcott,   19   Johns.  '« Den  v.  Drake,  14  N.  J.  Law  523, 

(N.  Y.)  73;  Merry  v.  Hallet,  2  Cow.  citing  Litt,  §  28;  4  Kent  Com.  100, 

(N.  Y.)  497.  1st  Ed. 

"  Murdock     v.     Reed,     1     Disney  "  Brown  v.  Kayser,  60  Wis.  1,  18 

(Ohio)    274.     A  statute  in  force  at  N.  W.  523;  Webb  v.  Seekins,  62  Wis. 

the  time  of  this  decision  altered  the  26,  21  N.  W.  814. 

result  in  this  case.  =>■  Gault  v.  Stormont,  51  Mich.  636, 

'*  Goodwin   v.   Goodwin,   33   Conn.  17  N.  W.  214;   Ridgely  v.  Stillwell, 

314.  25  Mo.  570. 

^^  Flannery     v.      Rohrmayer,      49 
Conn.  27. 


§•   175]  KINDS    OF    TENANCY.  214 

time.  Moreover,  it  was  determined  at  an  early  date  that  if  an  estate 
was  at  the  will  of  one  of  the  parties  it  was  equally  at  the  will  of  the 
other.^^  Speaking  for  the  Indiana  court,  Downey,  C.  J.,  said  in  re- 
gard to  this  question :  "It  is  a  well-settled'  and  well-known  rule  of 
law  that  a  lease  or  estate  which  is  at  the  will  of  one  of  the  parties  is 
equally  at  the  will  of  the  other  party.  One  of  them  is  no  more  and 
no  further  bound  than  the  other.  As  the  lessee  in  this  case  had  the 
clear  right,  at  his  will,  to  terminate  the  tenancy  at  any  time,  so  also 
had  the  lessor.     It  can  not  be  otherwise."'**' 

Where  there  was  a  written  agreement  for  a  tenancy  providing  for 
termination  of  renting  by  giving  four  days'  notice  and  providing  for 
the  payment  of  rent  in  monthly  or  semi-monthly  instalments,  it  was 
held  that  this  created  a  tenancy  at  will  and  not  a  tenancy  from  month 
to  month.  Therefore  such  a  term  is  ended  by  a  transfer.*^  An 
agreement  under  seal  by  a  tenant  that  he  will  surrender  possession 
whenever  a  purchaser  from  the  landlord  requires  it  constitutes  him  a 
tenant  at  will.*^ 

§  175.  Where  a  tenant  occupies  the  premises  without  rent  and 
without  any  time  agreed  upon  to  limit  the  occupation  and  without  in 
any  way  binding  himself  to  become  a  tenant  for  any  definite  time  or 
at  any  agreed  price,  his  occupation  is  that  of  a  tenant  at  will.''^  It 
does  not  alter  the  result  that  the  tenant's  holding  originates  in  a  writ- 
ten demise.  If  the  evidence  shows  no  reservation  of  rent  and  no 
duration  or  limit  of  the  term,  it  cannot  be  regarded  as  having  created 
any  greater  estate  than  a  strict  tenancy  at  will.  Although  it  is  not 
the  usual  practice,  there  is  no  inconsistency  or  objection  in  creating 
such  a  holding  by  a  written  instrument.**  A  mere  tenancy  at  will 
was  created  where  a  life  tenant  verbally  leased  the  premises  for  the 
full  term  of  his  life  in  consideration  of  an  agreement  for  his  sup- 
port.*^ And  where  the  owner  of  land  allowed  some  of  his  relatives  to 
use  and  improve  it  without  payment  of  rent,  they  became  mere  ten- 
ants at  will.*" 

'» Cowan  V.  Radford  Iron  Co.,  83  "  Say  v.  Stoddard,  27  Ohio  St.  478. 

Va.  547,  3  S.  E.  120;   Doe  v.  Rich-  ^^^  Harrison  v.  Middleton,  11  Grat. 

ards,  4  Ind.  374.  (Va.)  527. 

"  Knight  v.  Indiana  Coal  &c.  Co.,  "  Maher  v.  James  Hanley  &c.  Co., 

47  Ind.  105.     Blackstone  says  (Book  23  R.  I.  323,  50  Atl.  330. 

2,  p.  135) :    "But  every  estate  at  will  '*  Amick  v.  Brubaker,  101  Mo.  -473, 

is  at  the  will  of  both  parties,  land-  14  S.  W.  627. 

lord   and   tenant,  so  that   either  of  "  Barrett  v.  Cox,  112  Mich.  220,  70 

them  may  determine  this  will,  and  N.  W.  446. 

quit  his  connection  with  the  other  **  Ellsworth  v.  Hale,  33  Ark.  633. 
at  his  own  pleasure." 


315  TENANCY   AT   WILL.  [§§    176,   177 

In  a  case  where  no  claim  was  made  for  a  more  permanent  tenure, 
the  occupant  was  held  to  be  by  implication  a  tenant  at  will,  even 
without  the  reservation  of  any  rent.*^  Although  a  householder  per- 
mitted another  to  occupy  rent  free,  the  occupant  was  held  to  be  a 
tenant  at  will/^  Parol  authority  to  a  tenant  to  occupy  premises  as 
long  as  he  lived,  though  without  any  requirement  for  payment  of  rent, 
made  the  occupant  a  tenant  rather  than  a  mere  licensee,  and  entitled 
him  to  the  statutory  notice  to  quit  provided  for  in  such  cases.*'' 
Loose  expressions  in  a  lease  for  a  definite  period  will  not  change  it 
into  a  holding  at  will.  Thus  a  lease  for  one  year  provided  for  the 
payment  of  a  certain  rent  per  month,  payable  monthly  "so  long  as  the 
lessee  shall  occupy  the  said  house."  This  did  not  make  the  lessee  a 
tenant  at  will,  but  he  was  bound  for  the  full  year's  rent.^*' 

§  176.  A  parol  gift  of  land  creates  merely  an  estate  at  will  in  the 
donee,  which  he  has  no  power  to  alienate  by  deed  or  lease,  and  any  at- 
tempt to  do  so  on  his  part  terminates  the  will.  He  is  not  entitled  to 
a  notice  to  quit,  except  where  such  a  right  is  conferred  by  statute.^^ 
If  the  donee  leases  and  the  donor  does  not  ratify  his  act,  mere  per- 
mission to  lessee  to  occupy  will  not  prevent  the  donor  from  legally  devis- 
ing land,  and  his  devisee  may  recover  without  notice  to  quit.^^ 

§  177.  The  necessity  for  consent  by  the  landowner  to  create  a 
tenancy  at  will  is  shown  when  a  lessee  continues  in  possession  after  the 
expiration  of  his  term.  It  was  argued  that  after  the  expiration  of 
the  term  the  lessee  became  a  tenant  at  will,  and  as  such  was  entitled 
to  thirty  days'  notice  to  quit.  There  was  nothing  whatever  in  this 
claim.  The  lessee  was  not  a  tenant  at  will.  A  tenant  who  enters 
and  continues  in  possession  of  the  demised  premises  under  a  written 
lease  until  the  expiration  of  the  term,  does  not  thereafter  become  a 
tenant  at  will  by  refusing  to  surrender  that  possession  and  by  holding 
over  without  the  consent  of  the  lessor.^^     So  where  a  subtenant  held 

*^Larned  v.  Hudson,  60  N.  Y.  102.  28  N.  E.  378.     In  the  latter  case  the 

^'Rex  V.  Collett,  Russ.  &  Ry.  498;  fact  that  the  gift  was   conditional 

Jackson  v.  Bryan,  1  Johns.  (N.  Y.)  would  not  seem  to  have  any  logical 

322.                               .  effect  on  the  result. 

"  Allen  V.  Mansfield,  82  Mo.  688.  "■"-  Jackson  v.  Rogers,  1  Johns.  Cas. 

«'Lane  v.  Nelson,  167  Pa.  St.  602,  (N.  Y.)  33. 

31  Atl.  864.  "  Ferine  v.  Teague,  66  Cal.  446,  6 

"Dossee  v.  East  India  Co.,  1  L.  T.  Pac.   84;    Kuhn   v.    Smith,   125   Cal. 

(N.   S.)    345,  8  W.  R.  245;   Jackson  615,  58  Pac.  204;  Canning  v.  Fibush, 

v.  Rogers,  1  Johns.  Cas.  (N.  Y.)  33.  77  Cal.  196, 19  Pac.  376. 
Contra,  Kaufman  v.  Cook,  114  111.  11, 


§    178]  KIXDS   or   TENAXCT.  216 

over  after  a  new  lease  had  been  executed  to  a  different  lessee,  there 
was  no  tenancy  at  will  because  that  requires  the  consent  of  the  owner,, 
and  such  consent  could  not  be  inferred.^* 

When  a  party  remains  in  possession  after  the  end  of  his  term,  and 
no  new  agreement  is  made,  he  becomes  a  tenant  at  sufferance.  Only 
after  a  new  contract,  either  expressed,  or  which  may  be  fairly  implied 
from  the  acts  of  the  parties,  and  after  the  tenant  occupies  under  it, 
does  his  tenancy  become  a  tenancy  at  will,  and  subject  to  the  statutory 
rules  prescribed  for  terminating  that  kind  of  estate.^^ 

§  178.  A  landowner's  mere  consent  to  the  occupation  of  his  land 
by  another  does  not  necessarily  imply  consent  to  such  occupation  as 
tenant.  While  the  agreement  of  the  parties  upon  which  a  tenancy  at 
will  is  founded  will  ordinarily  be  implied  from  their  conduct  in  trans- 
ferring the  possession  of  the  premises  in  question,  such  an  inference 
is  rebutted  by  the  existence  of  a  definite  agreement  to  enter  into  con- 
tractual relations  of  a  different  nature,  as  to  become  grantor  and 
grantee.  If,  after  default  in  the  contract  under  which  entry  was 
made,  the  occupant  continues  to  hold  possession  with  the  consent  of 
the  owner,  there  is  then  no  objection  in  explaining  such  possession  on 
the  assumption  that  the  parties  have  agreed  to  the  creation  of  a  ten- 
ancy at  will.  In  one  case  the  entry  had  been  made  under  an  agree- 
ment for  lease,  which  the  occupant  refused  to  carry  out  after  receiving 
possession.  Upon  such  refusal  he  became  a  tenant  at  will.  There  is 
no  difference  between  entering  under  an  agreement  to  purchase  and 
under  a  contract  to  take  a  lease;  therefore  there  would  be  a  mere 
tenancy  at  the  will  of  the  lessor  after  refusal  of  the  tenant  to  make  a 
lease.^^ 

But  until  a  default  occurs  in  the  contract  of  sale  there  is  no  ground 
for  implying  a  tenancy  between  the  parties.  In  the  absence  of  agree- 
ment a  grantee  has  no  right  to  possession  of  the  premises  covered  by  a 
contract  of  sale  until  the  time  for  the  transfer  of  legal  title.  No 
demise  is  created  by  the  contract  of  sale;  and  the  vendee  holds  pos- 
session of  the  premises  only  by  permission  of  the  owner.  Although 
it  be  undoubtedly  the  intention  of  the  parties  that  he  shall  remain  in 
the  undisturbed  possession  of  the  land,  unless  he  neglects  to  make  the 
stipulated  payments,  he  has  no  title  by  which  he  can  hold  against  the 
true  owner  for  any  fixed  or  definite  length  of  time.     Therefore  the 

**  Smith  V.  Coe,  55  N.  Y.  678.  Mass.   367;    Merrill   v.  Bullock,  105 

"  Doe  v.  Stennett,  2  Esp.  717,  5  R.     Mass.  486. 
R.   769;    Emmons   v.    Scudder,    115        »« Dunne  v.  School  Trustees,  39  IlL 

578. 


217  TEXAXCY   AT    WILL.  [§    179 

vendor  is  the  proper  party  to  seek  for  a  remedy  for  injuries  to  the 
reversion,^  ^ 

However,  the  mere  absence  of  express  terms  of  renting  does  not 
prevent  the  implication  of  a  tenancy  at  will.  If  the  tenant  be  placed 
on  the  land  without  any  term  prescribed  or  rent  reserved,  and  as  a 
mere  occupier,  he  is  a  tenant  at  will.^^  In  accordance  with  this  prin- 
ciple it  has  been  held  that  the  pendency  of  negotiations  between  the 
parties  does  not  prevent  an  occupant  of  land  from  becoming  a  tenant 
at  will  of  the  owner  during  the  meantime.  One  moving  a  building 
on  land  of  another  in  expectation  of  its  sale  to  such  party  becomes  a 
tenant  at  will  pending  the  negotiations,  and  in  the  event  that  no 
agreement  is  made  he  becomes  liable  for  rent.  Had  such  negotia- 
tions ripened  into  a  completed  contract,  then  the  tenancy  at  will  would 
have  been  merged  in  the  executed  contract,  which  would  relate  back 
to  the  time  when  the  building  was  first  moved  upon  the  land.  But 
the  negotiations  were  never  perfected,  and  the  seller  remained  tenant 
at  will  to  the  buyer,  and  so  liable  in  use  and  oecupation.^^ 

Where  a  grantee  allowed  his  grantor  to  continue  in  possession  of 
the  granted  premises,  there  would  be  no  basis  for  inferring  that  the 
grantor  remained  in  possession  as  servant  so  that  crops  would  belong 
to  the  grantee  and  could  be  levied  on  as  his  property.  The  inference 
would  rather  be  that  the  grantor  was  a  tenant  to  the  grantee,  and 
therefore  the  owner  of  the  crops.^*^ 

§  179.  The  possession  of  a  tenant  at  will  is  in  contemplation  of 
law  a  complete  and  unqualified  possession  as  long  as  it  lasts.  So, 
although  an  agent  or  servant  in  occupation  of  land  can  not  maintain 
a  suit  for  possession  in  his  own  name,  a  tenant  at  will  has  such  a  pos- 
session as  will  enable  him  to  do  so.^^     A  tenant  at  will  can  undoubt- 

"  Foley  V.  Wyeth,  2  Allen  (Mass.)  to  be  a  possible  alternative.     Fur- 

131.     In    Jones   v.    Temple,    87    Va.  thermore,    every   holding   which    is 

210,  12  S.  B.  404,  the  statement  is  not  adverse  is  not  a  tenancy  at  will; 

made  that  "upon  familiar  principles  a  mortgagor  in  possession  does  not 

a  person  entering  under  a  contract  hold  adversely  to  his  mortgage,  yet 

of  purchase,  which  he  has  not  com-  he  is  not  a  tenant  at  will, 

plied  with,  would  be  a  tenant  at  will,  =*  Sarsfield  v.  Healy,  50  Barb.   (N. 

for  the  possession  of  the  tenant  is  Y.)   245;   Post  v.  Post,  14  Barb.   (N. 

by  virtue  of  an  entry  by  the  consent  Y.)   253. 

of  the  vendor;  it  is  not  adverse,  but,  ™  Michael  v.  Curtis,  60  Conn.  363, 

as  the  only  other  alternative,  it  is  a  22  Atl.  949. 

tenancy  at  the  will  of  the  vendor."  ^  Sherburne  v.  Jones.  20  Me.  70. 

One   criticism   of  this   statement  is  "  Jones  v.  Shay,  50  Cal.  508. 
that  a  tenancy  at  sufferance  seems 


§'   180]  KINDS    OF    TENANCY.  218 

edly  maintain  an  action  of  ejectment  because  one  having  an  even  more 
precarious  tenure  than  he  can  do  so.  It  is  held  that  "a  tenant  for 
years,  a  lessee  at  will  and  a  tenant  at  sufferance  may  support  this 
action  against  a  stranger,  or  even  against  his  landlord  unless  a  right 
of  entry  be  expressly  or  impliedly  reserved."  Many  may  be  found  in 
the  occupancy  of  lands  to  which  they  can  show  no  legal  title,  and 
unless  prior  peaceable  possession  gave  a  preference  in  the  right  of 
enjoyment,  the  peace  and  quiet  of  society  would  be  constantly  dis- 
turbed. This  is  the  reason  of  the  common  law  why  any  possession  is 
suflBcient  to  sustain  trespass  against  a  wrongdoer  or  a  person  who  can 
not  make  out  a  title  prima  facie  entitling  him  to  possession.^^ 

§  180.  Entry  and  occupation  under  a  void  parol  lease  creates  a 
tenancy,  which  is  either  strictly  at  will  or  from  year  to  year  or  from 
month  to  month,  according  to  the  circumstances  of  the  case.®^  The 
wording  of  the  English  statute  of  frauds  is  that  grants  by  parol  of  a 
greater  interest  than  a  three  years'  term  shall  only  be  deemed  estates 
at  will.  Although  the  wording  of  some  American  statutes  is  that 
parol  leases  for  more  than  a  certain  period  are  void,  occupation  under 
such  an  agreement  nevertheless  creates  a  tenancy.  The  occupier  is 
not  a  trespasser ;  he  is  not  a  mere  licensee.  He  may  be  compelled  to 
pay  for  the  use  and  occupation  of  the  premises.^*  Yet  a  ruling  that 
a  parol  lease  for  seven  years,  although  invalid  for  the  full  term,  was 
valid  for  the  term  of  one  year,  seems  not  only  unreasonable,  "but  it 
is  difficult  to  perceive  liow  such  a  contract,  declared  to  be  void  by  the 
statute,  can  be  held  to  be  valid  for  a  single  hour,  or  upon  what  princi- 
ple a  tenant  entering  under  a  void  lease  could  be  compelled  by  virtue 
of  the  lease  to  pay  for  a  longer  period  than  he  actually  occupied."^^ 

•==  Duncan  v.   Potts,  5  Stew.  &  P.  (N.   Y.)    226;   Anderson  v.  Prindle, 

(Ala.)  82.  23  "Wend.  (N.  Y.)  616;  Lounsbery  v. 

"=•  California:    Phelan  v.  Anderson,  Snyder,    31    N.    Y.    514;    Greton   v. 

118  Cal.  504,  50  Pac.  685.     Connecti-  Smith,   33  N.  Y.  245;    Lockwood  v. 

cut:      Lockwood    v.    Lockwood,    22  Lockwood,  22  Conn.  425. 

Conn.    425.      Michigan:     Huyser   v.  •^Thomas  v.  Nelson,  69  N.  Y.  118, 

Chase,    13    Mich.    98.     New    Hamp-  per  Earl,  J.     There  is  authority  for 

shire:     Whitney  v.  Swett,  22  N.  H.  the   doctrine  that  a  parol  lease  is 

10.   Pennsylvania:    Dumn  v.  Rother-  invalid  only  as  to  the  excess  of  the 

mel,  112  Pa.  272,  3  Atl.  800.     Tennes-  term  beyond  the  time  permitted  by 

see:    Duke  v.  Harper,  6  Yerg.   280.  the  statute  of  frauds.     Such  is  the 

Vermont:    Sartwell  v.  Sowles,  72  Vt.  rule  in  Nebraska.    Maxwell,  J.,  says: 

270,  48  Atl.  11.   Washington:    Dolan  "Here  was  a  lease   for  twenty-four 

V.  Scott,  25  Wash.  214,  65  Pac.  190.  months,  under  which  the  tenant  took 

"^Schuyler  v.  Leggett,  2  Cow.   (N.  possession.     The  parties  had  author- 

Y.)   660;  People  v.  Rickert,  8  Cow.  ity    to    make    a    lease    for    twelve 


319  TENANCY   AT    WILL.  [§    181 

The  explanation  to  remove  this  objection  is  that  the  tenancy  from  year 
to  year  arises  from  the  entry  and  payment  of  rent,  and  not  from  the 
invalid  lease.  The  lease  is  not  treated  as  valid  for  a  year ;  it  is  simply 
operative  to  the  extent  that  it  shows  the  occupation  is  permissive  and 
not  adverse.  The  agreement  for  a  periodic  tenancy  arises  by  pre- 
sumption of  law  out  of  the  continued  occupation  and  the  payment  of 
a  periodic  rent.  This  was  aptly  illustrated  by  a  case  where  the  very 
arrangement  which  the  parties  could  not  make  by  parol  arose  by  in- 
tendment of  law.  Thus  a  parol  agreement  that  a  tenant  holding  over 
shall  occupy  as  a  tenant  from  year  to  year  creates  a  tenancy  at  will 
merely;  but  this  becomes  a  tenancy  from  year  to  year  by  continued 
occupation  for  a  year  and  payment  of  annual  rent.^^*' 

Where  a  party  enters  into  possession  of  premises  under  a  parol  lease 
for  twenty  months  he  becomes  at  first  a  tenant  at  will,  but  if  a 
monthly  rent  is  paid  and  accepted,  a  tenancy  from  month  to  month  is 
created.^^  Where  an  annual  rent  is  reserved  and  has  been  paid  by 
the  tenant  in  possession,  there  is  a  tenancy  from  year  to  year.*'*  So 
when  land  was  occupied  several  years  with  no  written  agreement  it 
was  held  to  be  a  letting  from  year  to  year  which  commenced  at  the 
time  when  it  was  usual  to  rent  such  premises  in  the  county.*'^ 

§  181.  TJnauthorized  lease. — The  rule  that  occupation  under  a  void 
lease  creates  a  tenancy  at  will  applies  only  in  the  case  of  leases  granted 

months,  and  it  is  only  the  excess  Rev.  St.  1889,  §  6371).  New  Hamp- 
that  is  void,  and  it  is  void  only  be-  shire:  Tuttle  v.  Langley,  68  N.  H. 
cause  of  the  limitation  upon  the  464,  39  Atl.  488.  New  York:  Reeder 
power  to  make  the  contract,  but  to  v.  Sayre,  70  N.  Y.  180;  Lounsbery  v. 
the  extent  of  the  authority  the  lease  Snyder,  31  N.  Y.  514;  Kernochan  v. 
is  valid.  The  lease  therefore  was  "Wilkens,  3  N.  Y.  App.  Div.  596. 
valid  for  one  year."  Friedhoff  v.  Ohio:  Baltimore  &c.  R.  Co.  v.  West, 
Smith,  13  Neb.  5,  12  N.  W.  820,  57  Ohio  St.  161,  49  N.  E.  344.  Ore- 
quoted  with  approval  in  NickoUs  v.  gon:  Williams  v.  Ackerman,  8  Ore. 
Barnes.  39  Neb.  103,  57  N.  W.  990.  405;    Garrett  v.  Clark,   5   Ore.   464; 

""Amsden  v.  Atwood,  68  Vt.  322,  Rosenblat  v.  Perkins,  18  Ore.  156,  22 

35  Atl.  311.  Pac.  598.      Tennessee:     Shepherd  v. 

"Anderson  v.   Prindle,  23  Wend.  Cummings,  1  Coldw.  354.     Vermont: 

(N.  Y.)    616.     But  see,  Friedhoff  v.  Barlow   v.   Wainwright,    22   Vt.   88; 

Smith,  13  Neb.  5.  12  N.  W.  820.  Blanchard  v.  Bowers,  67  Vt.  403,  31 

""California:    Phelan  v.  Anderson,  Atl.     848.      Wisconsin:      Koplitz    v. 

118  Cal.  504,  50  Pac.  685.    Kentucky:  Gustavus,  48  Wis.  48,  3  N.  W.  754. 

Hauser  v.  Romer,  4  Ky.  L.  R.  815;  English:    Clayton  v.  Blakey,  8  Term 

Morehead    v.    Watkyns,    5    B.    Mon.  R.   3;    Thunder  v.   Belcher,   3   East 

228.     Michigan:     Coan    v.    Mole,    39  449;  Doe  v.  Amey,  12  A.  &  E.  476. 

Mich.   454.      Missouri:     Hammon  v.  ™  Hearn  v.  Gray,  2  Houst.   (Del.) 

Douglas,   50  Mo.  434    (prior  to  Mo.  135. 


§    182]  KINDS    OF    TENANCY.  220 

by  the  owner  of  the  premises  which  can  not  be  enforced  because  of  a 
failure  to  comply  with  some  statutory  requirement  as  to  execution. 
It  does  not  hold  true  of  a  demise  made  without  authority  from  the 
owner,  for  such  a  lease  does  not  show  the  owner's  consent  to  the  occu- 
pation, which  is  essential  to  the  creation  of  a  tenancy  at  will.  The 
rule  that  a  void  lease  and  entry  thereunder  will  create  a  tenancy  at 
will  entitling  the  tenant  to  notice  to  quit  does  not  apply  to  a  case  of 
entry  under  a  lease  made  by  an  agent  acting  entirely  without  author- 
ity. Not  only  was  the  lease  executed  by  the  agent  void,  but  any  pos- 
session given  under  it  or  right  of  tenancy  conferred  by  it  was  entirely 
unwarranted.  There  could  be  no  tenancy  at  will  created  by  means 
of  the  possession  so  obtained.'^"  The  same  result  would  follow  from 
incapacity  created  by  a  statute  forbidding  a  husband  to  execute  a 
lease  as  agent  in  behalf  of  liis  wife.  Such  a  lease  made  by  a  husband 
would  be  absolutely  void  and  no  action  could  be  maintained  upon  it. 
The  lease  attempted  to  be  made  would  be  incapable  of  ratification  in 
any  legitimate  sense.  Its  provisions  might  be  adopted  by  the  wife, 
but  as  the  term  exceeded  one  year,  this  could  not  be  done  by  parol. 
Parol  adoption  by  the  wife  would  create  a  tenancy  at  will,  but  an 
action  solely  upon  the  void  lease  could  not  be  maintained.'^^  How- 
ever, while  the  statute  of  frauds  makes  leases  for  more  than  one  year 
invalid  if  the  agent  is  not  authorized  in-  writing  to  execute  them,  yet 
where  the  lessee  has  been  put  into  possession  and  has  enjoyed  the 
premises  for  a  full  year,  the  executed  agreement  is  good  for  that 
period,  at  least,  is  not  within  the  statute,  and  the  authority  of  the 
agent  may  be  shown  by  parol."^ 

A  distinction  exists  where  the  person  executing  a  lease  is  not  en- 
tirely without  authority,  but  merely  exceeds  his  authority  in  respect 
to  the  length  of  the  term  for  which  he  leases.  Thus  in  one  jurisdic- 
tion the  statutory  authority  to  executors  to  lease  lands  of  their  testator 
limits  the  duration  of  such  leases  to  a  single  year.  Therefore  a  two- 
year  lease  by  executors  was  held  to  be  invalid  because  in  excess  of 
their  authority,  but  a  valid  tenancy  at  will  was  created  by  the  entry 
of  the  tenant.  Occupation  and  pa}Tnent  of  rent  would  have  the  effect 
of  changing  this  into  a  valid  year  to  year  tenancy  which  could  only 
be  terminated  by  notice  in  the  required  statutory  form.'^^ 

§  182.  Determination  of  tenancies  at  will. — In  the  absence  of 
statutory  requireinents  the  mode  of  terminating  a  tenancy  at  will  is 

">  Yellow  Jacket  &c.  Co.  v.  Steven-  "  Toan  v.  Pline,  60  Mich.  385,  27 

son,  5  Nev.  224.  N.  W.  557. 

"  Sanford    v.    Johnson,    24    Minn.  "  Grady  v.  Warrell,  105  Mich.  310, 

172.  63  N.  W.  204. 


221  TENANCY   AT    WILL.  [§    183 

for  the  landlord  to  enter,  use  words  declaring  the  tenancy  at  an  end, 
and  then  notify  the  tenant  of  his  action.^*  At  common  law  a  tenant 
at  will  was  not  entitled  to  notice  to  quit ;  a  mere  demand  on  him  for 
possession  was  all  that  the  law  required."  Tenancies  at  will  may  be 
terminated  by  any  act  or  declaration  inconsistent  with  the  voluntary 
relation  of  landlord  and  tenant;  as  notice  to  quit;  threat  of  legal 
means  to  recover  possession ;  anything  that  amounts  to  a  demand  for 
possession ;  the  bringing  of  an  action  to  recover  possession  which  fails, 
and,  possibly,  a  notice  to  the  tenant  that  if  he  continue  in  possession 
thereafter  he  must  pay  an  increased  rent,  terminates  the  tenancy.''^ 
Not  only  is  the  interest  of  a  tenant  at  will  determined  instanter  by  a 
demand  for  possession,  but  if  he  does  any  act  which  amounts  to  a  dis- 
claimer of  his  landlord's  title,  it  operates  as  a  forfeiture,  and  no  de- 
mand or  notice  to  deliver  possession  is  necessary."  Moreover,  an 
entry  by  the  landlord  upon  his  tenant  at  will,  of  which  the  tenant  is 
duly  notified,  vests  the  possession  in  the  landlord  without  an  expulsion 
of  the  tenant.  An  expulsion  of  the  tenant  is  not  necessary  in  order 
that  the  landlord  become  lawfully  possessed  of  the  premises,  and 
would  not  be  justified  until  a  reasonable  time  had  been  allowed  the 
tenant  to  remove  his  belongings.''^ 

On  the  other  hand,  a  tenant  at  will  could  put  an  end  to  his  holding 
instanter  at  common  law  and  avoid  further  liability  for  rent.  Al- 
though he  cannot  terminate  a  valid  contract  by  simply  giving  notice 
of  his  intention  to  do  so,  it  is  unnecessary  to  cite  authorities  to  the 
point  that  the  law  does  not  imply  an  agreement  to  pay  for  that  which 
one  has  not  received.  After  the  tenant  at  will  abandoned  the  prem- 
ises it  could  only  be  claimed  that  he  was  in  constructive  possession. 
If  there  were  no  statute  requiring  notice,  such  tenant  could  not  be  held 
for  rent  after  such  time ;  he  could  in  any  event  only  be  held  liable  for 
damages  which  might  result  to  the  property,  or  for  loss  thereof  by  rea- 
son of  his  abandonment  without  notice.''^ 

§  183.  Yet  until  a  termination  of  the  will  the  possession  of  a  ten- 
ant at  will  is  lawful  and  until  some  act  is  done  which  terminates  the 

'^Cook  V.  Cook,  28  Ala.  660.  (N.  Car.)   152;   Howell  v.  Howell,  7 

"Curl  V.  Lowell,  19  Pick.  (Mass.)  Ired.  L.  (N.  Car.)  496. 

25;   Cross  v.  Campbell,  89  111.  App.  "Curl  v.  Lowell,  19  Pick.  (Mass.) 

489;  Ross  v.  Garrison,  1  Dana  (Ky.)  25. 

35.  '"  Dolan  v.  Scott,  25  Wash.  214,  65 

"Amsden  v.  Blaisdell,  60  Vt.  386,  Pac.     190,    holding     rule    was    un- 

15  Atl.  332.  changed  by  statute. 

"  Love  v.   Edmonston,  1   Ired.  L. 


§§  184,  185]  KINDS  OF  TENANCY,  223 

tenancy,  the  landlord  can  not  recover  possession  by  suit.  Entry  under 
a  parol  agreement  to  lease  for  four  years  creates  only  a  tenancy  at 
will,  but  if  that  tenancy  be  not  determined  before  the  day  of  the 
demise  laid  in  the  declaration,  the  landlord  could  not  recover  in  eject- 
ment.*" In  accordance  with  these  principles  it  has  been  held  that 
a  tenant  at  will  has  a  right  to  have  reasonable  notice  of  his  landlord's 
intention  to  terminate  the  estate  before  an  action  can  be  brought 
against  him  for  possession.®^  Furthermore,  it  has  been  uniformly 
held  that  a  vendor,  having  placed  his  vendee  in  possession,  can  not 
without  a  demand  of  the  possession  and  a  refusal  by  the  vendee,  or 
some  wrongful  act  by  him  to  determine  such  possession,  treat  the 
vendee  as  a  wrongdoer  and  a  trespasser.  The  vendee  is  not  liable  to 
be  turned  out  of  possession  by  ejectment  without  previous  demand 
and  notice  by  the  vendor.  ®- 

§  184.     Death  of  parties  and  destructon  of  subject-matter. — It  is 

a  general  doctrine  of  the  law  of  landlord  and  tenant  that  a  total  de- 
struction of  the  subject-matter  of  a  lease  ends  the  tenancy  and  termi- 
nates the  relation  of  landlord  and  tenant.  So  if  premises  are  occu- 
pied by  a  tenant  at  will,  the  tenancy  ceases  when  the  property  is  de- 
stroyed and  the  tenant  is  ousted.®^  Besides  being  terminated  by  a  de- 
struction of  the  subject-matter,  a  tenancy  at  will  is,  at  common  law, 
determined  by  the  death  of  either  of  the  parties.  In  determining  the 
validity  of  a  bequest  of  a  leasehold  interest  it  was  held  that  to  make 
out  the  legatee's  case  it  must  be  contended  that  the  testator  was 
tenant  from  year  to  year,  "for  if  he  was  tenant  at  will  the  general 
doctrine  is  that  the  death  of  either  party  determines  the  will,  and  it 
would  follow  that  no  interest  passed  by  the  bequest."** 

§  185.  Notice  to  tenant  at  will. — In  a  lease  for  a  definite  term,  the 
parties  know  beforehand  the  time  when  the  holding  will  come  to  an 
end,  and  it  is  only  fair  to  insist  that  the  tenant  make  his  plans  accord- 
ingly and  vacate  immediately  upon  the  expiration  of  the  term.  The 
same  is  true  of  a  periodic  tenancy  when  due  notice  has  been  given 
that  the  arrangement  will  come  to  an  end  upon  the  expiration  of  one 

'"Goodtitle  v.  Herbert,  4  Term  R.  Birch  v.  Wright,  1  Term  R.  378,  381; 

680;  Denn  v.  Rawlins,  10  East  261;  Twyman  v.  Hawley,  24  Grat.   (Va.) 

Doe  v.  Jackson,  i  B.  &  C.  448;  1  Just.  512;  Jones  v.  Temple,  87  Va.  210,  12 

57,  Lit.  S.  68  Lom.  Dig.,  I,  192.  S.  E.  404. 

"Blum  V.  Robertson,  24  Cal.  127;  "O'Brien  v.  Cavanaugh,  61  Mich. 

Frisbie  v.  Price,  27  Cal.  253.  368,  28  N.  W.  127.   See  also,  §474. 

^^^ Right  v.    Beard,    13    East.    210;  "James  v.  Dean,  11  Ves.  383,  391. 


233  TEXAXCY    AT    WILL.  [§    186 

of  the  recurring  periods  of  the  tenancy.  But  since  a  tenant  at  will  is 
not  entitled  to  any  prior  notice  to  bring  his  holding  to  an  end,  such 
as  the  six  months'  notice  which  must  be  given  a  tenant  from  year  to 
year,  it  is  required  that  he  be  given  a  reasonable  time  after  the  termi- 
nation of  the  tenancy  to  remove  his  effects.  This  is  really  after  his 
holding  has  been  brought  to  an  end,  but  the  rule  is  commonly  ex- 
pressed by  saying  that  a  tenant  at  will  is  entitled  to  reasonable  notice 
and  no  more.^^  The  true  cause  and  explanation  of  the  rule  is  that 
the  tenant  is  entitled  to  a  reasonable  time  for  the  removal  of  his 
family  and  property. ^^  Upon  the  termination  of  his  tenancy,  he  has 
the  right  of  ingress  and  egress  so  far  as  may  be  necessary  to  remove 
his  effects."  -  Even  if  one  is  occupying  a  house  as  a  mere  tenant  at 
will,  the  landlord  has  no  right  to  lock  up  the  house  with  the  property 
of  the  tenant  in  it.  The  landlord  can  not  act  in  ^uch  a  manner  and 
claim  that  he  is  bound  to  no  diligence  whatever  for  the  preservation 
of  the  tenant's  property.  Upon  a  termination  of  the  tenancy  due  care 
must  be  exercised  to  prevent  injury  to  the  tenant.^* 

What  is  reasonable  notice  is  a  question  of  law  and  fact  to  be  deter- 
mined by  the  particular  circumstances  of  each  case.  The  time  must 
be  sufficient  to  enable  the  lessee  to  take  the  emblements,  and  to  re- 
move his  family,  furniture,  and  other  property.®^  In  case  none  of  the 
facts  were  in  dispute,  the  question  as  to  what  was  a  reasonable  time 
could  rightly  be  treated  as  a  question  of  law  for  the  court  to  decide.®*' 
Where  tenant,  who  had  been  allowed  to  build  a  small  house  on  land 
and  to  occupy  the  premises  at  will,  was  notified  to  vacate  immediately, 
and  within  four  days  suit  was  brought,  it  was  held  that  this  was  not 
sufficient  notice  to  terminate  the  tenancy.®^ 

§  186.  An  estate  at  will  is  uncertain  and  defeasible,  and  is  de- 
stroyed by  the  alienation  of  the  premises  by  either  party."-     The 

tenant,  in  case  of  an  alienation  l^y  the  owner  of  the  estate,  becomes  a 
mere  tenant  at  sufferance ;  for  the  estate  at  will  is  terminated  by  its 
own  legal  limitation,  it  not  l^eing  the  subject  of  alienation.®^     In  the 

"'Rich   V.   Bolton,   46   Vt.   84,   88;  s"  Currier  v.  Earl,  13  Me.  216. 

Harrison    v.    Middleton,     11     Grat.  ""Ellis  v.  Paige,  1  Pick.    (Mass.) 

(Va.)  527.  43,  50;  same  case  2  Pick.  71,  n.,  Co. 

«•>  Davis  v.  Thompson,  13  Me.  209;  Litt.  56  b. 

Folsom  v.  Moore,  19  Me.  252;  Simp-  "'  Boudette  v.  Pierce,  50  Vt.  212. 

kins  v.  Rogers,  15  111.  397,  °' Co.  Litt.  55  b.  57  a.;  Jackson  v. 

"Folsom   v.    Moore,   19   Me.    252;  Aldrich,  13  Johns.  (N.  Y.)  106,  109; 

Simpkins  v.  Rogers,  15  111.  397.  Disdale  v.  lies,  2  Lev.  88. 

^  Gross  v.  Hays,  73  Tex.  515,  11  S.  "'  Joy   v.   McKay,   70   Cal.   445,    11 

W.  523.  Pac.  763;  Esty  v.  Baker,  50  Me.  325; 


§  187]  KINDS  OF  TENANCY.  224 

language  of  the  old  law,  conveyance  of  the  premises  terminated  the 
will.  The  entry  of  the  tenant  under  the  former  landlord  had  been 
without  wrong,  but  he  continued  to  hold  without  any  consent,  express 
or  implied,  from  the  new  owner  so  that  he  became  a  tenant  at  suffer- 
ance. This  effect  of  a  transfer  operated  to  deprive  the  tenant  of  the 
benefit  of  the  statutes  requiring  notice  from  the  landlord  to  terminate 
a  tenancy  at  will.  As  a  tenant  at  will  he  would  be  entitled  to  a  notice 
to  quit,  but  after  a  conveyance  of  the  premises  by  the  landlord,  the 
tenant  could  be  evicted  even  without  the  notice  provided  for  by 
statute.  He  could  only  claim  the  protection  extended  to  a  tenant  at 
sufferance.^*  But  in  some  jurisdictions  this  is  by  statute  made  the 
same  as  that  given  to  a  tenant  at  will.  However,  in  others,  as  in 
Massachusetts,  the  old  common  law  distinction  is  made  between 
estates  at  will  and  at  sufferance  in  the  statutes  regarding  notice  to 
quit.  Thus  in  the  jurisdiction  mentioned  a  tenant  at  will,  after 
conveyance  of  the  reversion,  was  held  liable  to  the  grantee,  without 
notice  to  quit,  to  the  process  given  by  statute  respecting  forcible  entry 
and  detainer,  tenants  at  sufferance  not  being  entitled  to  notice  under 
any  of  the  provisions  of  that  statute.^^ 

The  general  doctrine  that  any  transfer  of  the  estate  of  a  lessor  at 
will  determines  the  will  and  makes  the  former  tenant  at  will  a  tenant 
at  sufferance  to  the  grantee  of  the  reversion,  applies  with  equal  force 
to  an  involuntary  transfer  taking  effect  by  operation  of  law.  The 
vesting  of  title  in  the  assignee  upon  the  insolvency  or  bankruptcy  of  a 
landlord  at  will  operates  to  terminate  the  estate  and  makes  the  lessee 
at  will  a  tenant  at  sufferance."®  The  effect  of  a  transfer  of  the  land- 
lord's interest  upon  a  tenancy  at  will  is  the  same,  although  the  con- 
veyance is  against  the  will  of  the  owner.  Thus  a  sale  of  the  land- 
lord's interest  on  execution  will  have  the  effect  of  converting  a  tenancy 
at  will  into  a  tenancy  at  sufferance.^'^ 

§  187.  Purpose  and  mode  of  transfer  immaterial. — A  lessor  at  will 
need  not  make  a  conveyance  in  fee  in  order  to  bring  the  tenancy  to 
an  end.     It  is  a  fixed  rule  that  if  the  owner  of  the  land,  which  is  in 

Robinson   v.   Deering,   56    Me.   357;  38  Atl.  540;  Lash  v.  Ames,  171  Mass. 

Reed  v.  Reed,  48  Me.  388;  Hammond  487,  50  N.  E.  996. 

V.  Thompson,  168  Mass.  531,  47  N.  "=  Benedict    v.    Morse,     10     Mete. 

E.  137;  Lash  V.  Ames,  171  Mass.  487,  (Mass.)    223;    Curtis   v.    Galvin,    1 

50  N.  E.  996;   Ball  v.  Cullimore,  2  Allen  (Mass.)  215. 

C.  M.  &  R.  120,  1  Gale  96.  ""  Doe  v.  Thomas,  6  Exch.  854. 

**  Seavey  v.  Cloudman,  90  Me.  536,  "  Marsters  v.  Cling,  163  Mass.  477, 

40  N.  E.  763. 


235  TENANCY   AT    WILL.  [§    188 

the  occupation  of  a  tenant  at  will,  makes  a  feoffment,  or  a  lease  for 
years  to  commence  immediately,  the  estate  at  will  is  thereby  deter- 
mined.''^ A  written  lease  for  years  from  the  landlord  to  a  third  per- 
son has  the  same  effect  as  a  conveyance  in  fee.  In  this  connection  a 
lease  ^'for  the  season,"  being  a  demise  for  a  certain  time,  though  it 
may  be  construed  to  be  for  a  term  less  than  a  year,  is  technically  a 
lease  for  years.®^ 

The  purpose  of  the  parties  in  executing  the  written  lease  is  imma- 
terial. The  express  object  may  be  to  get  rid  of  the  tenant.  So  that 
a  provision  in  the  written  lease  that  no  rent  shall  be  paid  till  the  lessee 
is  in  possession  does  not  affect  the  result.^""  A  tenant  at  will  can  not 
maintain  an  action  against  his  landlord  for  advising  and  procuring 
a  person  to  whom  he  has  given  a  lease  of  the  premises  to  eject  the 
tenant.  Tlie  landlord  has  a  legal  right  to  terminate  the  tenancy  at 
will  by  giving  a  lease,  and  after  the  lease  is  given,  the  lessee  has  the 
legal  right,  after  due  notice,  to  eject  the  tenant  in  a  peaceable  man- 
ner. It  is  immaterial  what  his  motives  are.  An  action  can  not  be 
maintained  against  him,  or  against  any  person  acting  with  him,  or  ad- 
vising or  procuring  him  to  act,  unless  either  the  act  complained  of 
or  the  means  by  which  it  was  accomplished  are  shown  to  be  unlawful. 
The  tenant  can  not  maintain  an  action  against  the  landlord  for  ad- 
vising and  procuring  the  lessee  to  assert  and  enforce  his  legal  rights, 
even  if  the  landlord  is  actuated  by  malice,  because  the  tenant's  rights 
are  not  invaded,  and  he  sustains  no  legal  injury.^"^ 

§  188.  Notice  of  the  transfer  of  the  landlord's  title  must  in  some 
way  be  brought  home  to  the  tenant  for  it  to  have  the  effect  of  bringing 
a  tenancy  at  will  to  an  end.  The  law  upon  the  subject  is,  that  if  an 
assignment  or  conveyance  of  the  reversion  takes  place  behind  the  back 
of  the  tenant,  it  does  not  affect  him  till  he  has  notice  of  it ;  but  if  he 
has  knowledge  from  the  assignee  of  the  reversion  or  has  himself  ac- 
quired the  same  information,  it  is  a  determination  of  the  will.^**^ 
'This  form  of  expressing  the  will  to  end  the  tenancy,  taking  place  off 
the  land  and  in  the  absence  of  the  other  party,  must  be  made  known 
to  him,  in  order  to  give  effect  to  the  intention  and  actually  terminate 
the  tenancy,  although  no  particular  form  of  notice  is  necessary."  ^"^ 

"  Pratt  V.  Farrar,  10  Allen  (Mass.)  ^°«  Pratt     v.     Farrar,     10     Allen 

519;    Hildreth  v.   Conant,   10   Mete.  (Mass.)  519. 

(Mass.)     298;    Kelly    v.    Waite,    12  "' Groustra  v.  Bourges,  141  Mass. 

Mete.  (Mass.)  300;  2  Bl.  Com.  146.  7,  4  N.  E.  623. 

™  Kelly  v.  Waite,  12  Mete.  (Mass.)  ^"^  Doe  v.  Thomas,  6  Exch.  854. 

300;  2  Bl.  Com.  140.  '« Pratt     v.     Farrar,     10     Allen 
Jones  L.  &  T.— 15 


§§■   189,    190]  KINDS    OF    TENANCY.  226 

The  lessor  may  by  actual  entry  upon  the  ground  determine  his  will 
in  the  absence  of  the  lessee;  but  by  words  spoken  off  the  land,  the 
will  is  not  determined  till  the  lessee  has  notice. 

§  189.  Recovery  of  rent  till  time  of  alienation. — Where  a.  tenancy 
at  will  is  determined  between  rent  days  by  a  transfer  of  the  premises, 
rent  can  not  be  recovered  for  the  portion  of  the  period  the  tenant  was 
in  occupation.  The  landlord  can  not  recover  it  from  the  occupier  as 
tenant  at  will  because  he  has  determined  this  tenancy  between  two 
rent  days,  and  the  rent  can  not  be  apportioned.  He  can  not  recover 
it  from  the  occupier  as  tenant  at  sufferance,  because  during  that  time 
the  occupier  was  tenant  at  will.^°*  This  rule  has  been  applied  against 
a  landlord  suing  for  rent  in  a  case  where  the  conveyance  which  termi- 
nated the  tenancy  at  will  was  made  on  the  last  day  of  a  monthly  term. 
The  tenant  at  will  was  not  turned  out,  and  there  was  an  agreement 
that  he  should  not  be  turned  out  without  a  month's  notice.  The  rent 
was  not  due  till  sunset,  and  the  transfer  was  made  before  that  time. 
It  was  argued  that  the  law  did  not  regard  fractions  of  a  day.  The 
court  replied  that  when  it  was  important  for  the  rights  of  parties  to 
determine  which  of  two  events  happening  on  the  same  day  is  to  have 
priority  over  the  other,  the  law  does  not  hesitate  to  pass  upon  the  ques- 
tion.i*'^  In  this  case  the  tenancy  at  will  was  not  changed  to  a  tenancy 
at  sufferance  by  the  conveyance,  but  remained  a  tenancy  at  will  under 
the  new  landlord,  so  that  he  could  recover  rent  for  the  entire  month. 
In  Massachusetts,  after  the  tenancy  at  will  has  been  terminated  by  a 
written  lease,  the  former  tenant  at  will  becomes  liable  for  rent  under 
the  statute  applicable  to  tenants  at  sufferance.  The  right  of  action 
to  sue  for  such  rent  is  in  the  lessee  taking  under  the  written  lease,  and 
it  is  improper  to  join  the  owner  of  the  premises  in  such  a  suit.^"° 

§  190.  The  estate  of  a  tenant  at  will  is  not  an  interest  capable  of 
bargain  and  sale.  It  cannot  be  assigned  without  the  landlord's  con- 
sent. An  unauthorized  transfer  gives  the  transferee  no  right  that  he 
can  hold  against  the  will  of  the  landlord.^**^     Not  only  can  the  tenant 

(Mass.)  519,  per  Gray,  J.;  Furlong  121    Mass.    178,    and    Nicholson    v. 

V.  Leary,  8  Cush.  (Mass.)  409;  Miz-  Munigle,  6  Allen  (Mass.)  215. 

ner  V.  Munroe,  10  Gray  (Mass.)  290;  ^"^  Hammond    v.     Thompson,     168 

Doe  V.   Thomas,   6   Exch.   854,   857;  Mass.  531,  47  N.  E.  137. 

Pinhorn  v.  Souster,  8  Exch.  763,  770.  '"^  Cof  ran   v.    Shepard,   148    Mass. 

^»*  Emmes  v.  Feeley,  132  Mass.  346,  582,  20  N.  E.  181. 

citing    Fuller    v.     Swett,    6    Allen  ^^^  Alabama:    Cook  v.  Cook,  28  Ala. 

(Mass.)   219,  n.;  Dexter  v.  Phillips,  660.      California:     McLeran  v.  Ben- 


227  TEXANCY   AT   WILL.  [§    190 

confer  no  rights  on  his  assignee,  but  by  his  attempted  transfer  he  for- 
feits his  own  rights  and  relinquishes  his  estate.^"^  If  a  tenant  at  will 
assigns  his  estate  to  another  who  enters  upon  the  land,  the  latter  is  a 
disseisor,  and  the  landlord  may  have  an  action  of  trespass  against 
him.^"^  So  in  case  a  lessee  at  will  makes  a  mortgage  to  a  stranger 
in  fee  the  lessor  may  have  trespass  forthwith  against  the  mortgagee. 
And  it  is  no  bar  to  such  action  that  the  mortgagee  has  been  put  into 
possession  by  the  sheriff  under  a  writ  of  habere  facias}'^^  Not  only 
is  a  tenant  at  will  precluded  from  assigning  his  interest  without  the 
consent  of  his  landlord,  but  he  can  not  even  grant  a  sublease  out  of 
his  estate.  The  sublessee  would  not  succeed  to  the  rights  of  his  lessor 
but  would  be  a  mere  tenant  at  sufferance  to  the  original  landlord  and 
could  be  ousted  without  notice.^^^ 

However,  although  a  tenant  at  will  has  no  assignable  estate,  yet  if 
he  attempts  to  make  an  assignment  and  the  landlord  recognizes  the 
assignee  as  a  tenant,  the  latter  becomes  a  tenant  at  will  just  the  same 
as  his  predecessor."^  The  assignee  entering  into  possession  may,  at 
the  election  of  the  owner  of  the  leased  premises,  be  treated  either  as  a 
tenant  or  as  a  trespasser. ^^^  Accordingly,  the  general  doctrine,  that 
the  making  of  a  lease  by  a  tenant  at  will  terminates  his  tenancy  and 
converts  him  into  a  disseisor,  must  be  understood  with  this  qualifica- 
tion, that  it  has  this  effect  only  at  the  election  of  the  landlord,  and 
that  the  tenant  can  not  avail  himself  of  it  to  avoid  the  payment  of 
rent."* 

It  makes  no  difference  whether  the  tenant's  transfer  is  voluntary  or 
involuntary  as  far  as  the  effect  in  determining  the  estate  at  will  is 
concerned,  for  such  an  interest  is  not  the  subject-matter  of  a  judicial 

ton,  73  Cal.  329,  14  Pac.  879.     Geor-  Mass.  309;  Howell  v.  Howell,  7  Ired. 

gia:    Atlanta  &c.  R.  Co.  v.  McHau,  L.   (N.  Car.)   496;   McCann  v.  Rath- 

110   Ga.   543,   35   S.   E.   634.     Massa-  bone,  8  R.  I.  403. 

chusetts:    Cooper  v.  Adams,  6  Cush.  "'Cooper     v.     Adams,     6     Cush. 

87.     Maine:    Cunningham  v.  Holton,  (Mass.)  87;  Cunningham  v.  Holton, 

55  Me.  33;  Dingley  v.  Buffum,  57  Me.  55  Me.  33. 

381.      North    Carolina:      Howell    v.  ""  Little  v,  Palister,  4  Me.  209. 

Howell,  7  Ired.  L.  496.     New  Hamp-  "^  Meier  v.  Thiemann,  15  Mo.  App. 

shire:    Wittemore  v.  Gibbs,  24  N.  H.  307. 

484;    Austin  v.  Thomson,  45  N.  H.  "^  Landon  v.  Townshend,  129  N.  Y. 

113,  117.     Rhode  Island:    McCann  v.  166,  29   N.  E.  71,  41  N.  Y.  St.  419, 

Rathbone,  8  R.  I.  403.  affirming  38  N.  Y.  St.  714,  14  N.  Y. 

"""Cook  v.   Cook,  28   Ala.   660 ;Mc-  S.  522. 

Leran  v.  Benton,  73  Cal.  329,  14  Pac.  '"  McCann  v.  Rathbone.  8  R.  I.  403. 

879;     Cooper    v.     Adams,    6    Cush.  "' Cook  v.  Cook,  28  Ala.  660. 
(Mass.)     87;    King    v.    Lawson,    98 


§§  191,  192]  KINDS  OF  TENANCY.  338 

sale."^  So  even  where  a  tenant  at  will  assented  to  a  levy  on  the  land 
as  his  property,  this  determined  the  tenancy,  and  the  landlord  could 
bring  trespass  against  the  Judgment  creditor  for  his  entry.^^^ 

§  191.  Notice  to  the  landlord  is  essential  in  order  that  an  assign- 
ment by  a  tenant  at  will  shall  determine  the  estate.  Parke,  B.,  after 
reserving  this  question  for  consideration,  pronounced  his  opinion 
thus:  "It,  however,  now  seems  clear,  from  a  case  in  Yelverton,  that 
the  assignment  by  the  tenant  at  will  of  his  interest  to  a  third  party 
is  no  determination  of  the  tenancy,  unless  the  lessor  at  will  have 
notice.  That  was  so  decided  by  the  members  of  the  court  in  Carpen- 
ter V.  Colins;^'^''  .  .  .  the  principle  laid  down  in  that  case 
clearly  is  that  a  tenant  at  will  can  not  determine  his  tenancy  by  trans- 
ferring his  interest  to  a  third  party  without  notice  to  his  landlord."^^* 

III.     Tenancy  from  Year  to  Year. 

§  192.  Rests  on  judicial  not  statutory  authority. — The  law  re- 
specting tenancies  from  year  to  year  is  not  of  statutory  but  judicial 
creation,  whereby  certain  restraining  limitations  were  placed  upon 
both  landlord  and  tenant  where  the  holding  was  at  will.  Statutes  on 
the  subject  were  merely  declaratory  of  those  rules.^^^  The  origin  of 
estates  of  this  kind  has  been  well  stated  by  Wilmot,  J.,  who  said :  "In 
the  country  leases  at  will,  in  the  strict  legal  notion  of  leases  at  will, 
being  found  extremely  inconvenient,  exist  only  notionally,  and  were 
succeeded  by  another  species  of  contract  which  was  less  inconvenient. 
At  first  it  was  indeed  settled  to  be  for  a  year  certain,  and  then  the 
landlord  might  turn  the  tenant  out  at  the  end  of  the  year.  It  is  now 
established  that  if  a  tenant  takes  from  year  to  year,  either  party  must 
give  a  reasonable  notice  before  the  end  of  the  year,  though  that  rea- 
sonable notice  varies  according  to  the  customs  of  different  coun- 
ties."i2o 

It  thus  appears  that  a  tenancy  from  year  to  year  is  a  qualified 
tenancy  at  will  introduced  to  obviate  the  inconveniences  of  that  kind 
of  estate ;  and  the  qualification  requires  the  determination  of  the  will 
to  be  prospective,  to  take  effect  at  the  end  of  a  current  year  of  the 

"'  Atlanta  &c.  R.  Co.  v.  McHan,  110  "*  Hauser  v.  Romer,  4  Ky.  L.  R. 

Ga.  543,  35  S.  E.  634.  815. 

"« Campbell  v.  Procter,  6  Me.  12.  "°  Timmins  v.  Rowlinson,  3  Burr. 

'"  Yelv.  73.    '  1609.    quoted   In   Goddard    v.    South 

"«Pinhorn    v.    Souster,    8    Exch.  Carolina  R.  Co.,  2  Rich.  L.   (S.  C.) 

763,  772.  346. 


229 


TENANCY  FROM  YEAR  TO  YEAR. 


[§  193 


tenaney.^^^  There  is  another  view  of  the  nature  of  a  year  to  year 
tenancy.  This  is  that  it  is  dependent  on  a  presumed  oral  agreement 
between  the  parties  which  is  valid  because  of  the  exception  in  the 
statute  of  frauds  in  favor  of  parol  leases  for  three  years  or  less.  If 
this  be  the  true  theory  it  follows  that  in  those  jurisdictions  where  no 
exception  is  made  in  favor  of  short  term  parol  leases,  this  doctrine  of 
year  to  year  tenancy  is  illogical.  Some  courts  have,  in  the  absence  of 
any  excepting  clause  in  the  statute,  refused  to  recognize  such  tenan- 
cies,^^- but  it  woiild  seem  without  sound  reason;  because  the  doctrine 


"^Crawford  v.  Morris,  5  Grat. 
(Va.)  90.  "At  common  law  estates 
at  will  are  of  two  classes;  estates  at 
will  strictly,  and  estates  from  year 
to  year.  They  differ  chiefly,  if  not 
entirely,  in  this.  The  former  may  be 
terminated  by  either  of  the  parties 
at  his  pleasure;  the  latter  can  be 
terminated  against  the  will  of  the 
other  party  only  at  the  expiration  of 
the  year,  month,  etc.,  as  the  case 
may  be,  by  a  notice  to  quit,  except 
where  one  of  the  parties  has  failed 
to  perform  his  part  of  the  contract. 
The  last  class  of  tenancies  is  so 
much  more  favorable  to  the  tenant 
than  the  strict  tenancy  at  will  that 
the  courts  have,  from  a  very  early 
period,  leaned  strongly  in  favor  of 
regarding  every  tenancy,  the  terms 
of  which  do  not  show  a  strict  ten- 
ancy at  willj  or  which  is  not  created 
by  a  written  instrument,  as  a  ten- 
ancy from  year  to  year."  Currier  v. 
Perley,  24  N.  H.  219,  222,  citing  2 
Black.  Com.  147;  1  Cruise  Dig.  260; 
4  Kent  Com.  Ill;  2  Greenl.  Ev., 
§§  319-325. 

"-  Hammon  v.  Douglas,  50  Mo.  434, 
citing  Ellis  v.  Paige,  1  Pick.  (Mass.) 
43;  Hollis  v.  Pool,  3  Mete.  (Mass.) 
350;  Kelly  v.  Waite,  12  Mete. 
(Mass.)  300,  and  Bennock  v.  Whip- 
ple, 12  Me.  346.  In  the  course  of  the 
opinion  the  Missouri  court  say: 
"The  first  section  of  the  English 
statute  (29  Car.  I,  ch.  3)  has  been 
adopted  in  Missouri  as  well  as  in  the 


other  states,  but  the  exception  in 
favor  of  leases  not  to  exceed  three 
years  is  omitted  in  this  state.  So  we 
have  simply  the  provisions  without 
the  exceptions,  that  all  leases,  etc., 
made  by  parol,  and  not  put  in  writ- 
ing, shall  have  the  force  and  effect 
of  leases  at  will  only.  It  is  diflBcult 
to  see,  under  this  section,  how  any 
other  lease  than  at  will  can  be  cre- 
ated by  parol.  The  language  seems 
to  be  clear  and  specific,  and  to  hold 
that  a  tenancy  from  year  to  year 
can  be  created  by  a  verbal  permis- 
sion to  hold  over  under  a  former 
lease  would  seem  to  create  a  lease 
other  than  at  will,  which  is  not  re- 
duced to  writing.  Under  the  excep- 
tion in  the  English  statute,  which 
has  been  adopted  along  with  the 
first  section  in  most  of  the  states, 
there  is  no  inconsistency  in  this 
view;  for  as  in  all  leases  for  less 
than  three  years  the  law  stands  as 
before  its  adoption,  and  a  verbal 
lease  from  year  to  year,  which  can 
in  no  case  exceed  two  years,  is  as 
valid  as  though  there  were  no  stat- 
ute of  frauds." 

Further  comment  on  this  question 
was  made  by  Judge  Bennett  in  the 
case  of  Barlow  v.  Wainwright,  22 
Vt.  88.  He  said:  "It  is  true  the 
English  statute  of  frauds  has  an  ex- 
ception, as  to  leases  not  exceeding 
the  term  of  three  years;  and  this  is 
dwelt  upon  by  the  court  of  Massa- 
chusetts as  a  reason  why  the   de- 


§  193]  KINDS  OF  TENAXCT.  230 

of  notice  to  quit  for  the  purpose  of  increasing  the  stability  of  the 
tenant's  tenure  is  a  very  ancient  one.  It  existed  before  the  passage 
of  the  English  statute  of  frauds.  Nothing  in  that  statute  forbids  the 
continued  enforcement  of  the  established  rules  in  regard  to  notice. 
The  presence  of  the  exception  in  favor  of  short  term  parol  leases  can 
be  accounted  for  on  other  grounds  than  for  the  purpose  of  preserving 
periodical  tenancies.  The  conclusion  seems  justified,  therefore,  that 
the  saving  clause  for  short  term  parol  leases  was  not  put  into  the 
statute  of  frauds  for  the  purpose  of  preserving  year  to  year  tenancies ; 
and  that  the  doctrine  of  tenancies  at  will  for  periodical  terms  would 
have  been  valid  even  if  there  had  been  no  such  saving  clause  in  the 
statute  of  frauds  as  originally  in  force  in  England. 

§  193,  Applicable  to  conditions  in  this  country. — In  view  of  the 
nature  of  the  origin  of  periodic  tenancies  in  a  species  of  judicial  legis- 
lation, it  has  been  argued  that  the  law  regarding  them  was  not  ap- 
plicable to- the  changed  conditions  existing  in  the  colonies,  and  that 
therefore  it  was  not  adopted  in  this  country  as  a  part  of  the  common 
law.  This  argument  was  answered  by  Judge  Bell,  of  the  New  Hamp- 
shire Supreme  Court,  in  the  middle  of  the  last  century.  He  said: 
"We  are  aware  of  nothing  which  tends  to  show  that  the  rules  of  the 
common  law,  relative  to  estates  from  year  to  year,  are  in  any  way  not 
applicable  to  our  institutions  or  to  the  circumstances  of  the  country. 
The  general  system  of  the  common  law  relating  to  real  estate  was 
beyond  question  'adopted  and  approved  and  commonly  practiced 
upon'  in  the  transactions  of  business  and  *in  the  courts  of  law'  from 
the  foundation  of  the  province,  and  we  can  see  no  reason  to  doubt 
that  this  portion  of  it,  founded  as  it  is  upon  much  clearer  principles 

cisions  of  the  courts  of  England,  un-  clared  that  the  estate  created  by  a 

der  this  statute,  should  not  furnish  verbal  lease  was  only  an  estate  at 

a  rule  for  them.   I  must  confess  that  will,  unless  it  came  within  the  ex- 

I  do  not  see  the  force  of  the  reason-  ception  of  the  English  statute,  and 

ing  of  the  court,  which  would  pre-  that  under  our  statute  it  might  be 

vent  an  estate  at  will  from  being  turned  into  a  tenancy  from  year  to 

turned  into  a  tenancy  from  year  to  year  as   well   as   in   England.    The 

year  in  Massachusetts,  and  allow  it  court  of  Maine,  in  the  case  of  Davis 

under  the  English   statute.    In   the  v.  Thompson,  13  Me.  209.  214,  under 

case  of  Hanchet  v.  Whitney,  2  Aik.  a  similar  statute  followed  the  Mas- 

240,  it  was  not   supposed  that  our  sachusetts  cases;  but  no  new  views 

statute  of  1797  would  have  any  other  of  the  question  are  presented,  and 

or  greater  effect  than  the   English  for  myself   I   cannot  coincide  with 

statute,  and  [it  was  supposed]  that  those  cases." 
both  alike,  in  the  first  instance,  de- 


I 


231  TENANCY  FROM  YEAR  TO  YEAR.      [§§  194,  195 

of  equity  and  justice  than  many  other  parts  of  it,  was  adopted  with 
the  rest."^" 

§  194.  The  expression  tenant  at  will  from  year  to  year  exactly  ex- 
presses the  old  common  law  idea  of  periodical  tenure  and  in  view  of 
the  nature  and  origin  of  the  doctrine  is  the  most  natural  and  appro- 
priate term  to  describe  such  holdings.  Where  the  law  would  not  raise 
the  implication  of  recurring  periodical  terms,  the  distinguishing  mode 
of  expression  was  to  call  such  relation  a  tenancy  strictly  at  will.  Thus 
it  is  perfectly  accurate  and  consistent  to  say  that  one  occupying,  under 
an  oral  agreement  for  a  written  lease,  a  yearly  rent  being  reserved,  is 
a  tenant  at  will  from  year  to  year  and  must  give  a  notice  to  quit.^-* 
A  tenancy  from  year  to  year  or  a  tenancy  from  month  to  month  is  a 
modified  tenancy  at  will.  The  modification  did  not  alter  the  essential 
elements  of  the  tenure,  but  only  set  up  certain  restrictions  as  to  the 
termination  of  the  will.  For  the  sake  of  convenience,  a  period  of 
notice  is  required  before  either  party  can  terminate  the  will,  and  in 
addition  the  holding  can  only  be  brought  to  a  close  at  the  end  of  a 
year.  In  a  case  where  there  was  a  letting  for  an  indefinite  period  at 
a  monthly  rent  an  express  agreement  by  the  tenant  to  give  up  posses- 
sion when  it  was  required  did  not  relieve  the  landlord  from  the 
necessity  of  giving  a  full  month's  notice  prior  to  one  of  the  monthly 
periods.^^^ 

§  195.  Similarity  to  estates  for  term  of  years. — In  certain  respects 
a  tenancy  from  year  to  year  resembles  a  holding  under  a  lease  for  a 
definite  term  of  one  year.  The  tenant  from  year  to  year  is  bound  for 
the  full  year's  rent  even  though  he  abandons  the  premises.  If  the 
landlord  choose  to  hold  him,  a  tenant  from  year  to  year  is  in  no  better 
position  in  regard  to  escaping  liability  for  rent  than  is  a  lessee  who 
is  bound  by  express  covenants. ^^"^     Parties  have  repeatedly  been  held 

^  Currier  v.  Perley,  24  N.  H.  219,  as  well  defined  as  that  between  one 

223.  for  life  and  one  for  years.   There  is 

'"  Huntington  v.  Parkhurst,  87  no  such  estate  as  one  'at  will  from 
Mich.  38,  49  N.  W.  597;  Tuttle  v.  year  to  year.'  The  assertion  that 
Langley,  68  N.  H.  464,  39  Atl.  488.  there  is  such  a  tenancy  as  one  'at 
The  historical  origin  of  periodical  will  from  year  to  year,'  is  a  sole- 
tenancies  is  sometimes  lost  sight  of,  cism."  Park  v.  Castle,  19  How.  Pr. 
and  this  leads  to  such  a  mistake  as  (N.  Y.)   29. 

the  New  York  Supreme  Court  made  *"  Woodrow  v.   Michael,  13   Mich, 

in    the    following   quotation:     "The  187. 

distinction    between    a    tenancy    at  '*'  Lockwood      v.     Lockwood,      22 

will,  and  one  from  year  to  year,  is  Conn.  425;  Currier  v.  Perley,  24  N. 


§  196]  KINDS  OF  TENANCY.  232 

liable  in  actions  for  use  and  occupation,  although  there  has  not  been 
an  actual  occupation,  for  the  whole  term  in  respect  to  which  the 
actions  were  brought.^^^  And  if  during  the  continuance  of  a  ten- 
ancy, the  tenant  abandons  the  possession  of  the  premises  he  is  as  much 
liable  for  the  rent  as  though  he  had  continued  his  occupancy.^^^  So 
in  accordance  with  the  general  rule  regarding  leases  for  fixed  terms, 
unless  there  is  an  agreement  to  the  contrary,  rent  on  a  yearly  tenancy 
is  not  due  till  the  end  of  the  term,  and  a  suit  to  recover  it  prior  to 
that  time  is  premature.^^^  But  the  rent  does  become  due  at  the  end 
of  every  year,  so  that  the  right  of  action  for  the  rent  accrues  then,  and 
the  statute  of  limitations  against  such  right  of  action  begins  to  run 
at  the  same  time.^^" 

The  general  rule  is  that  a  grant  of  the  reversion  has  no  efEect  upon 
the  validity  of  an  outstanding  term  of  years,  and  the  same  tolds 
true  of  a  grant  of  the  reversionary  interest  after  a  tenancy  from  year 
to  year.  Unlike  a  strict  tenancy  at  will,  a  term  from  year  to  year  is 
not  changed  by  a  conveyance  of  the  reversion,  and  the  holding  can 
only  be  terminated  by  a  notice  in  the  ordinary  form.  By  the  sale  and 
conveyance  of  the  real  estate  and  the  recognition  of  such  sale  by 
the  tenant  and  the  payment  of  rent  to  the  grantee,  the  tenant  be- 
comes the  tenant  of  the  grantee,  but  this  does  not  change  the  nature 
of  the  tenancy  or  give  the  tenant  any  greater  rights  than  he  otherwise 
had.  If  the  grantor  had  leased  the  real  estate  for  one  year,  and  within 
the  year  had  conveyed  the  premises,  it  certainly  would  not  be  con- 
tended that  the  lease  was  extended,  or  that  the  lessee  would  have  any 
greater  right  by  reason  of  such  sale.  The  rights  of  the  lessee  remain 
the  same ;  the  sale  of  the  real  estate  did  not  add  to  or  take  away  any- 
thing from  the  tenancy. ^^^  A  tenancy  from  year  to  year  is  to  be  con- 
sidered as  recommencing  every  year.^^^ 

§  196.  Statutory  modifications. — The  entire  topic  of  estates  at  will 
and  from  year  to  year  is  rather  generally  covered  by  statutes,  which 
prescribe  the  form  of  notice,  the  length  of  time  it  must  cover  and  the 

H.  219;   Tanton  v.  Van  Alstine,  24  ""Cowan  v.  Henika,  19  Ind.  App. 

111.  App.  405.  40,  48  N.  E.  809. 

^^  Pinero  v.   Judson,   6  Bing.   206,  '"  Swope  v.  Hopkins,  119  Ind.  125, 

19  E.  C.  L.  100.  21  N.  E.  462;   Kellum  v.  Berkshire 

""Bacon  v.  Brown,  9  Conn.  R.  334;  &c.  Ins.  Co.,  101  Ind.  455. 

Lockwood    v.    Lockwood,    22    Conn.  ''=  Tomkins   v.    Lawrence,    8    C.   & 

425.  P.    729;     Gladwell    v.    Holcomb,    60 

'■'>  Indianapolis  &c.  R.  Co.  v.  First  Ohio  St.  427,  54  N.  E.  473. 
Nat.   Bank,   134  Ind.   127,   33   N.   E. 
679. 


233  TENANCY  FROM  TEAR  TO  YEAR.  [§  197 

mode  of  serving  it  in  order  that  a  holding  of  this  kind  may  be  brought 
to  an  end.  In  view  of  the  fact  that  the  doctrine  of  tenancy  from 
year  to  year  originated  in  a  kind  of  judicial  legislation,  a  doubt  has 
been  raised  as  to  whether  it  could  be  regarded  as  still  existing  when 
the  matters  of  notice  and  so  forth  were  regulated  by  statute.  The  best 
view  is  that  tenancies  from  year  to  year  continue  to  exist  until  ex- 
pressly abolished  by  statute.  Judge  Mitchell  said  in  regard  to  this 
question:  "While  tenancies  from  year  to  year  are  the  creation  of 
judicial  decisions,  based  upon  principles  of  policy  and  justice,  out  of 
what  were  anciently  tenancies  strictly  at  will,  terminable  at  any  time 
by  either  party  without  notice,  yet  such  tenancies  had  become  so  well 
established  and  so  fully  recognized  in  the  common  law  that  it  would 
naturally  be  supposed  that,  if  it  had  been  intended  to  convert  them 
into  mere  tenancies  at  will,  it  would  have  been  done  by  express  and 
clear  language,  and  not  left  to  mere  inference  and  implication."^^^ 

§  197.  An  estate  at  will  is  converted  into  an  estate  from  year  to 
year  by  the  payment  of  rent;  the  conversion  is  wrought,  not  by  the 
length  of  time  of  the  holding,  but  by  the  fact  that  the  tenant  entered 
under  an  agreement  to  pay  an  annual  rent  and  pays  accordingly.^^* 
A  general  occupancy  by  one  other  than  the  owner  of  land  will  be 
treated  as  a  tenancy  from  year  to  year  whenever  the  reservation  of 
rent  or  other  circumstances  plainly  indicate  an  agreement  for  an 
annual  holding.^^^  On  the  tenant's  first  going  into  occupation  he 
holds  as  a  tenant  at  will  and  his  tenure  becomes  a  year  to  year  hold- 
ing by  the  lapse  of  time  and  the  payment  of  rent.  Although  it  is 
sometimes  laid  down  without  qualification  that  occupation  under  a 
void  lease  creates  a  tenancy  from  year  to  year,  regardless  of  whether 
an  annual  rent  is  received  or  paid,^^*'  this  is  not  true  of  an  occupation 
without  payment  of  rent  and  with  no  agreement  as  to  time  of  hold- 
ing, which  creates  but  a  strict  tenancy  at  will.^^^  Entry  under  a  lease 
void  because  of  the  statute  of  frauds  and  occupation  by  the  tenant 
does  not  of  itself  make  him  a  tenant  from  year  to  year ;  he  is  a  tenant 

"'Hunter  v.  Frost,  47  Minn.  1,  49  Stillwell,    28    Mo.    400;     Rogers    v. 

N.  W.  327.  Wheaton,    88    Tenn.    665,    13    S.    W. 

"*Silsby  v.  Allen,  43  Vt.  172.  689;  Indianapolis  &c.  R.  Co.  v.  First 

^^  Farley  v.  McKeegan,  48  Neb.  Nat.  Bank,  134  Ind.  27,  33  N.  E.  679. 
237,  67  N.  W.  161;  Judd  v.  Fairs,  58        ^"Kankakee  &c.  R.  Co.  v.  Horan, 

Mich.  518,  19  N.  W.  266.  131  111.  288,  23  N.  E.  621;  Johnson  v, 

"'Larkin  v.  Avery,  23  Conn.  304,  Johnson,  13  R.  I.  467;   Braythwayte 

316;  Hunt  V.  Morton,  18  111.  75;  Kerr  v.  Hitchcock,  10  M.  &  W.  494;   Do© 

V.    Clark,    19    Mo.    132;    Ridgley    v.  v.  Wood,  14  M.  &  W.  682. 


t  197] 


KIXDS    OF    TENAXCY. 


234 


at  will  inerel3\  In  order  to  create  a  tenancy  from  year  to  year  some 
acts  must  occur  from  which  a  new  agreement  can  be  inferred,  such 
as  the  payment  of  some  aliquot  part  of  a  yearly  rent.  Without  evi- 
dence to  the  contrary,  such  payment  is  controlling  evidence  of  a  year 
to  year  tenancy. ^^*  When  the  entry  into  occupation  has  been  under  a 
void  parol  lease,  which  reserves  an  annual  rent,  the  payment  of  any 
aliquot  part  of  such  rent  will  have  the  effect  of  creating  a  tenancy 
from  year  to  year,  or  at  least  for  one  year.^^^  Where  land  has  been  oc- 
cupied on  shares,  a  verbal  agreement  that  the  tenant  should  have  it 
three  years  more  on  shares,  although  within  the  statute  of  frauds, 
will  support  a  holding  from  year  to  year  until  ended  by  notice.^*'' 

The  leading  circumstance  which  turns  parol  leases  for  uncertain 
terms  into  tenancies  from  year  to  year  is  the  reservation  of  an  annual 
rent.^*^  And  it  has  been  held  that  the  reservation  of  an  annual  rent 
is  essential  to  the  creation  of  this  kind  of  holding.  Mere  length  of 
acquiescence  in  the  tenants  would  not  ripen  into  a  tenancy  from  year 
to  year  in  the  absence  of  this  essential  element  of  annual  rent.  Thus 
there  is  a  decision  that  the  letting  of  a  shed  to  be  used  as  a  stable,  for 
the  dung  as  compensation,  created  a  tenancy  at  will,  and  not  from 
year  to  year,  because  there  was  no  reservaiton  of  rent  referable  to  a 
year  or  to  some  aliquot  part  of  a  year.^*^    On  the  other  hand,  it  has 


^^  Barrett  v.  Cox,  112  Mich.  220, 
70  N.  W.  446;  Williams  v.  Deriar,  31 
Mo.  13;  Richardson  v.  Langridge,  4 
Taunt.  128;  Braythwayte  v.  Hitch- 
cock, 10  M.  &  W.  494,  497;  Talamo 
V.  Spitzmiller,  120  N.  Y.  37,  23  N.  E. 
980;  Doe  v.  Wood,  14  M.  &  W.  682. 
Where  a  landlord  had  broken  his 
covenant  to  supply  a  stairway  to  a 
tenant  who  had  a  four-years'  lease, 
hut  allowed  him  to  use  another 
stairway  and  some  floor  space,  it 
was  held  that  since  tenant  had  en- 
tered and  paid  rent,  it  created  a 
tenancy  from  year  to  year.  Blumen- 
thal  V.  Bloomingdale,  100  N.  Y.  558, 
3  N.  E.  292,  affirming  30  Hun  382. 
As  a  matter  of  fact,  no  rent  was  paid 
for  the  stairway  and  floor  space;  the 
only  consideration  was  the  implied 
agreement  not  to  sue  the  landlord 
for  breach  of  covenant.  This  was 
not  an  annual  payment.  The  only 
theory  on  which  to  support  the  case 


is  that  the  lease  was  surrendered 
in  toto  and  replaced  by  a  new  verbal 
letting. 

"^  Steketee  v.  Pratt,  122  Mich.  80. 
80  N.  W.  989;  Huntington  v.  Park- 
hurst,  87  Mich.  38,  24  Am.  St.  146. 

""Coan  V.  Mole,  39  Mich.  454. 

"^Alabama:  Duncan  v.  Potts,  5 
Stew.  &  P.  82.  Illinois:  Packard  v. 
Cleveland  &c.  R.  Co.,  46  111.  App. 
244;  Herrell  v.  Sizeland,  81  111.  457. 
Kentucky:  Squires  v.  Huff,  3  A.  K. 
Marsh  17.  Missouri:  Williams  v. 
Deriar,  31  Mo.  13.  New  York: 
Jackson  v.  Bradt,  2  Caines  169. 
Rhode  Island:  Johnson  v.  Johnson, 
13  R.  I.  467.  English:  Doidge  v. 
Bowers,  2  M.  &  W.  365;  Pope  v. 
Garland,  4  Y.  &  C.  394. 

^"Rich  V.  Bolton,  46  Vt.  84,  88; 
Mcintosh  V.  Hodges,  110  Mich.  319, 
68  N.  W.  158;  Richardson  v.  Lang- 
ridge, 4  Taunt.  128;  Roe  v.  Lees, 
2  W.  Bl.  117L 


235 


TENANCY    FROM    YEAR   TO    YEAR.  [§1^8 


been  held  that  such  a  tenancy  at  will  may  be  changed  into  a  tenancy 
from  year  to  year  by  other  circumstances  indicating  that  to  be  the 
intention  of  the  parties,  as  well  as  by  the  acceptance  of  annual  rent.^" 
According  to  this  doctrine, -where  the  tenant  was  to  pay  his  rent  for  five 
years  by  putting  the  premises  in  repair,^**  and  where  certain  debts 
were  to  be  paid  by  the  tenant  out  of  the  proceeds  of  the  income  from 
the  property,"^  it  was  held  a  sufficient  reservation  of  an  annual  rent 
to  constitute  the  holding  a  year  to  year  tenancy. 

Wliere  land  was  mistakenly  supposed  to  have  been  included  in  a 
lease,  lessees  occupying  it  become,  by  payment  and  acceptance  of  rent, 
tenants  from  year  to  year  of  such  land."^ 

§  198.  The  receipt  of  rent  by  a  landlord  from  which  a  tenancy 
from  year  to  year  is  inferred  may  be  explained  on  other  grounds. 

The  principle,  that  the  payment  of  rent  may  be  explained, -for  the 
purpose  of  protecting  parties  from  the  legal  consequences  which 
would  otherwise  follow  from  such  payments,  has  been  recognized  in 
previous  cases,^*^  and  it  is  consistent  with  the  general  principles  of 
law.^*^  In  one  case  the  landowner  gave  evidence  for  the  purpose  of 
showing  that  his  receipt  of  rent  had  taken  place  under  a  mistake  of 
fact  in  respect  of  the  determination  of  the  lease,  which  had  improperly 
been  concealed  from  him.  Upon  that  explanation,  the  question  was 
no  longer  what  was  the  legal  presumption  from  the  unexplained  pay- 
ment of  rent,  but  whether  the  evidence  offered  to  explain  the  receipts 
on  the  part  of  the  lessor  did  establish,  that,  in  point  of  fact,  the  rent 
had  been  received  in  relation  to  the  old  lease,  and  not  upon  a  new 
agreement.  Such  a  ruling  is  not  inconsistent  with  the  principle,  that, 
from  the  payment  of  rent,  unexplained,  the  law  will  imply  a  tenancy 
from  year  to  year.^'*'' 

If  the  doctrine  of  tenancy  rests  on  the  presumption  of  an  actual 
agreement  of  the  parties  to  that  effect,  it  naturally  follows  that  the 
tenancy  continues  to  be  at  will  when  the  parties  expressly  so  stipulate 
and  there  is  a  case  supporting  this  view  ;^^''  but  if  the  doctrine  is  an 

"^  Dumn  v.  Rothermel,  112  Pa.  St.  &    P.    326;     Rogers    v.    Pitcher,    1 

272,  3  Atl.  800.  Marsh.  541,  6  Taunt.  202. 

'"  Brant    v.    Vincent,    100    Mich.  "'  Gravenor  v.  Woodhouse,  1  Bing. 

426,     59     N.    W.     169;     Thomas    v.  38,  43,  7  Moore  289,  299;   Fenner  v. 

Wright,  9  S.  &  R.  (Pa.)  87.  Duploclt,  2  Bing.  10,  9  Moore  38. 

"^Leavitt    v.    Leavitt,    47    N.    H.  "» Doe  v.  Crago,  6  C.  B.  90,  60  E. 

329.  C.  L.  89. 

"°  Jackson  v.  Wilsey,  9  Johns.  (N.  ""Sullivan    v.     Enders,    3     Dana 

Y.)   267.  (Ky.)    66. 

"^Williams  v.  Bartholomew,  1  B. 


§    199]  KINDS    OF    TENANCY.  236 

arbitrary  rule  of  law,  enforced  without  regard  to  the  actual  wishes  of 
the  parties,  such  an  agreement  would  not  control  the  ordinary  conse- 
quence flowing  from  possession  and  payment  of  an  annual  rent. 

§  199.     Where  a  tenant  enters  and  occupies  under  an  invalid  parol 
lease,  the  agreement  governs  the  terms  of  the  holding  as  to  the 

amount  and  time  for  pajTnent  of  rent  and  as  to  other  matters,  but 
not  as  to  the  duration  of  the  term.^^^  In  an  early  English  case  a 
tenant  was  let  into  possession  under  an  agreement  which  gave  the 
parties  a  right  to  go  into  equity  to  compel  the  execution  of  a  formal 
lease.  The  court  decided  under  such  circumstances  that  the  tenant 
would  hold  on  the  terms  of  the  intended  lease.  One  of  the  terms  was 
that  the  lessee  should  not  take  successive  crops  of  corn,  and  that  the 
lessor  should  have  power  to  reenter  on  the  breach  of  such  agreement. 
This  agreement  and  proviso  would  apply  to  the  yearly  tenancy  cre- 
ated. It  was  argued  that  the  terms  of  the  lease  could  not  be  applied 
to  the  parol  tenancy,  inasmuch  as  some  of  them,  such  as  the  agree- 
ment for  repairs,  were  not  usually  considered  as  applicable  to  such 
tenancy.  Although  it  might  be  questionable  whether  an  obligation  to 
repair  could  be  enforced  under  such  circumstances,  at  all  events  the 
agreement  as  to  cropping  the  land  was  one  which  was  consistent  with 
a  yearly  tenancy.  There  is  no  reason  why  an  agreement  regarding 
the  rotation  of  crops  cannot  be  engrafted  on  a  yearly  tenancy,  and  a 
condition  for  reentry  is  also  applicable  to  this  tenancy.^ ^^  The  special 
provisions  in  a  parol  lease  for  more  than  a  year  are  valid  to  the  ex- 
tent that  they  will  prevent  the  lessee  from  making  any  use  of  the  pos- 
session not  contemplated  by  the  parties  or  any  use  of  it  that  will  be 
detrimental  to  the  landlord.^^^  So  after  a  tenant  had  enjoyed  the 
term  under  a  parol  lease  he  would  be  liable  for  a  breach  of  collateral 
covenants  in  regard  to  the  mode  of  cultivation.^^^   A  lease  void  under 

1=^  Connecticut:     Larkin  v.   Avery,  10  R.  I.  355.     Tennessee:    Shepherd 

23  Conn.  304,  316.     Indiana:    Rails-  v.    Cummings,    1    Coldw.    354.     Illi- 

back  v.  Walke,   81  Ind.  409;    Nash  nois:     Donohue  v.  Chicago  &c.  Co., 

V.    Berkmeir,    83     Ind.     536.       New  37   111.  App.   552;    Field  v.  Herrick, 

York:    Laughran  v.  Smith,  75  N.  Y.  14  111.  App.  181.     Vermont:    Barlow 

205;  Reader  v.  Sayre,  70  N.  Y.  180;  v.  Wainwright,  22  Vt.  88.    England: 

Kernochan  v.  Wilkens,  3  N.  Y.  App.  Doe  v.  Bell,  5  Term  R.  471. 

Div.    596;     Schuyler    v.    Leggett,    2  "=  Doe  v.  Amey,  12  A.  &  E.  476. 

Cow.   660.     North  Dakota:     Peoples  "^Phillips  v.  Robertson,  4  Hayw. 

v.  Evens,  8  N.   Dak.  121,  77  N.  W.  (Tenn.)     153,    158,    citing    Doe    v. 

93.     Ohio:     Baltimore  &c.  R.  Co.  v.  Amey,  12  A.  &  E.  476. 

West,  57  Ohio  St.  161.  49  N.  E.  344.  ^"  Bridgman  v.  Wells,  13  Ohio  43, 

Rhode   Island:     Thurber   v.    Dwyer,  citing  Doe  v.  Amey,  12  A.  &  E.  476. 


i 


237 


TENANCY  FROM  TEAR  TO  YEAR.  [§'  199 


the  statute  of  frauds  because  not  in  writing  will  nevertheless  regulate 
the  terms  of  the  tenancy  as  respects  the  rent.^"^^  Thus  the  time  for 
payment  of  rent  and  the  amount  thereof  will  be  regulated  by  the  oral 
aoreement."^  And  a  parol  agreement  for  setting  off  expenses  in- 
curred by  a  lessee  in  making  improvements  against  the  amount  of  rent 
due  from  him  by  virtue  of  the  same  parol  agreement  is  valid.  ^"  If 
a  party  enter  under  an  invalid  agreement,  or  under  an  agreement 
not  amounting  to  a  demise,  he  shall  still  hold  subject  to  the  terms  of 
that  agreement,  so  far  as  they  are  not  at  variance  with  the  species  of 
tenancy  which  the  law  under  the  circumstances  creates.^^^  A  landlord 
suing  for  rent  must  proceed,  either  upon  an  express  contract  made 
with  the  tenant  or  upon  a  contract  which  the  law  will  imply  from  the 
relation  subsisting  between  them,  and  where  there  is  an  express  con- 
tract between  the  parties  none  can  be  implied. ^^^  If  a  tenant,  after 
having  occupied  property,  under  a  parol  demise,  can  turn  around 
and  say  to  his  landlord,  you  cannot  recover  the  rent,  for  I  object  to 
any  parol  evidence  of  my  agreement  to  pay  it,  it  might  well  justify  a 
remark  made  by  Chief  Justice  Best:  "This  is  one  of  the  most  in- 
iquitous objections  ever  made."^^*'  The  statute  of  frauds  would  then 
be  converted  into  an  instrument  to  protect  fraud  instead  of  operating 
to  prevent  it. 

Ordinarily  the  time  when  a  year  to  year  tenant  entered  into  pos- 
session determines  the  time  when  his  holding  must  be  brought  to  an 
end.  But  it  seems  that  this  might  be  modified  or  changed  by  agree- 
ment between  the  parties.  Lord  Kenyon  in  deciding  such  a  case  said : 
"It  was  agreed  that  the  defendant  should  quit  at  Candlemas,  and 
though  the  agreement  is  void  as  to  the  number  of  years  for  which  the 
defendant  was  to  hold,  if  the  lessor  choose  to  determine  the  tenancy 
before  the  expiration  of  the  seven  years,  he  can  only  put  an  end  to  it  at 
Candlemas."^"  The  view  of  Lord  Kenyon  has  not,  however,  been  sus- 
tained by  authority,  and  the  present  rule  is  that  "in  all  cases  the  cur- 
rent year  refers  to  the  time  of  entry  rather  than  to  the  time  of  year 

"'Nash  V.  Berkmeir,  83  Ind.  536;  111.    App.    552;     Barlow    v.    Wain- 
Roberts   V.    Tennell,    3    T.    B.    Mon.  wright,  22  Vt.  88. 
(Ky.)    247,   253;    Evans  v.   Winona  "'King  v.  Woodruff,  23  Conn.  56. 
lAimber  Co.,  30  Minn.  515,  16  N.  W.  "^  Berrey  v.   Lindley,   3   M.   &   G. 
404;    Steele   v.   Anheuser-Busch   &c.  498,  42  E.  C.  L.  263. 
Assn.,   57  Minn.   18,   58  N.  W.   685;  "=  Hall  v.  Burgess,  5  B.  &  C.  332, 
Walker  v.  Shakelford,  49  Ark.  503,  11  E.  C.  L.  485. 
5  S.  W.  887.  "°  Seago  v.  Deane,  4  Bing.  459,  13 

i=«Donohue  v.  Chicago  &c.  Co.,  37  E.  C.  L.  588. 

"1  Doe  v.  Bell,  5  Term  R.  471. 


§    200]  KINDS    OF    TENANCY.  238 

when  the  invalid  parol  lease  would  terminate  by  its  own  limitation, 
unless  the  parties  stipulate  to  the  contrary."^®^ 

Actual  occupation  under  a  parol  lease  gives  ample  notice  of  the 
lessee's  rights  to  a  purchaser  as  much  as  occupation  under  a  valid 
lease  would  do.^®^ 

§  200.  The  form  of  action  to  recover  rent  when  occupation  has 
been  under  a  void  agreement  is  one  for  use  and  occupation.  After 
some  controversy  in  the  English  cases,  the  question  was  put  at  rest 
there  by  statute,^^*  In  the  United  States  the  courts,  disregarding  the 
opposing  decisions  of  the  English  courts,  held  without  the  aid  of  a 
statute  that  an  action  of  indebitatus  assumpsit  might  be  maintained, 
even  upon  an  implied  promise  arising  from  the  permitted  use  and 
occupation  of  real  estate.^"^  Although  the  action  is  not  based  on  the 
void  agreement,  reference  may  be  made  to  it  to  determine  the  amount 
of  rent.  Chief  Justice  Gibbs  said  in  an  early  nisi  prius  case,  where  it 
was  attempted  to  hold  a  tenant  for  rent  on  a  parol  lease :  "The  agree- 
ment is  void  by  the  statute  of  frauds;  but  I  am  of  opinion  that  you 
may  still  resort  to  it  to  calculate  the  amount  of  rent.  In  case  the  ten- 
ant under  such  an  agreement  should  take  possession,  he  would  be  a 
tenant  at  will."^*^®  Where  the  right  of  the  landlord  is  made  to  depend' 
on  the  wording  of  the  statute,  that  "no  action  shall  be  brought"  on 
such  contracts,^^''  a  change  in  the  statute  to  the  ejffect  that  such  con- 
tracts are  void  would  change  the  law.  So  the  Kentucky  court  held 
that  the  parol  agreement  could  not  be  referred  to  to  determine  the 
amount  of  rent.  The  reason  for  the  decision  is  stated  as  follows: 
"And  as  the  contract  was  non-enforceable,  by  reason  of  the  statute 
of  frauds,  the  contract  price  was  also  non-enforceable ;  for  to  allow  the 
recovery  of  the  price  agreed  upon  by  the  contract,  but  deny  an  action 
on  the  contract  itself,  would  be  equivalent  to  granting  and  denying 
the  remedy  in  the  same  action."^®® 

"=Doe  v.  Dobell,  1  A.  &  E.  (N.  S.)  i«^Gunn  v.  Scovil,  4  Day  (Conn.) 

806,  41  E.  C.  L.  786;  Berrey  v.  Lind-  228;  King  v.  Woodruff,  23  Conn.  56. 

ley,  3  M.  &  G.  498,  42  E.  C.  L.  263;  ^"^  De   Medina  v.   Poison,  Holt  N. 

Coudert  v.  Cohn,  118  N.  Y.  309,  23  P.  47. 

N.  E.  298.  "'  Roberts  v.  Tennell,  3  T.  B.  Men. 

"'Sheets  v.  Allen,  89  Pa.  St.  47.  (Ky.)   247,  253. 

^"  11  Geo.  2  ch.  19,  §  14.    See  also,  ^^  Ragsdale  v.  Lander,  80  Ky.  61, 

Cocking  V.  Ward,  1  M.  G.  &  S.  858,  64. 
50  E.  C.  L.  858;  Price  v.  Leyburn,  1 
Gow  109. 


239 


TENANCY  PROM  YEAR  TO  YEAR. 


[§  301 


§  201.  Yearly  tenancy  created  by  holding  over. — One  of  the  most 
common  ways  in  which  a  tenancy  from  year  to  year  originates  is  for  a 
landlord  to  allow  his  tenant  for  years  to  hold  over  after  the  expiration, 
of  the  term.  In  all  jurisdictions  where  the  doctrine  of  tenancy  from 
year  to  year  is  recognized,  the  rule  is  universal  that  if  a  tenant  con- 
tinue in  possession  after  the  end  of  his  term,  the  landlord  may  charge 
him  on  the  contract  as  yearly  tenant.^^''  As  far  back  as  the  case  of 
Wright  v.  Darby, ^'^^  decided  in  the  eighteenth  century.  Lord  Mans- 
field said:  "If  there  be  a  lease  for  a  year,  and  by  consent  of  both, 
parties  the  tenant  continue  in  possession  afterwards,  the  law  implies- 
a  tacit  renovation  of  the  contract.  They  are  supposed  to  have  renewed 
the  old  agreement,  which  was  to  hold  for  a  year."  "Where  a  party 
holds  over  after  his  lease  has  expired,  the  inference  that  the  parties 
consent  to  a  continuation  of  the  same  term  is  so  strong  that  it  is 
adopted  as  a  rule  of  law."^ 

Although  the  tenant  has  no  intention  of  entering  into  an  agree- 
ment for  another  year,  the  landlord  has  the  option  to  charge  him  as 
tenant  for  a  full  year  by  reason  of  his  holding  over,  or  the  landlord 


*'^ Alabama:  Ames  v.  Schuesler, 
14  Ala.  600;  Crommelin  v.  Thiess, 
31  Ala.  412.  Arkansas:  Belding  v. 
Texas  Produce  Co.,  61  Ark.  377,  33 
S.  W.  421,  Colorado:  Burkhard  v. 
Mitchell,  16  Colo.  376,.  26  Pac.  657; 
Sears  v.  Smith,  3  Colo.  287. 
Georgia:  Roberson  v.  Simons,  109 
Ga.  360,  34  S.  E.  604.  Illinois: 
Hately  v.  Myers,  96  111.  App.  217. 
Indiana:  Kleespies  v.  McKenzie,  12 
Ind.  App.  404,  40  N.  E.  648. 
Kansas:  Adams  Express  Co.  v.  Mc- 
Donald, 21  Kan.  680;  Wheat  v. 
Brown,  3  Kan.  App.  431,  43  Pac. 
807.  Maryland:  Hall  v.  Myers,  43 
Md.  446;  Hobbs  v.  Batory,  86  Md. 
68,  37  Atl.  713.  Minnesota:  Gard- 
ner V.  Board  of  Com'rs,  21  Minn. 
33.  Missouri:  Stoops  v.  Devlin,  16 
Mo.  162;  Finney  v.  St.  Louis,  39 
Mo.  177;  Quinette  v.  Carpenter,  35 
Mo.  502.  Nebraska:  Critchfield  v. 
Remaley,  21  Neb.  178,  31  N.  W.  687; 
Montgomery  v.  Willis,  45  Neb.  434, 
63  N.  W.  794;  Bradley  v.  Slater,  50 
Neb.  682,  70  N.  W.  258.  New  Jer- 
sey:   Yetter  v.  King  &c,  Co.,  66  N. 


J.  Law  491,  49  Atl.  678.  North 
Carolina:  Harty  v.  Harris,  120  N. 
Car.  408,  27  S.  E.  90.  Oregon: 
Parker  v.  Page,  41  Ore.  579,  69  Pac. 
822.  Pennsylvania:  Phoenixville 
Borough  v.  Walters,  147  Pa.  St.  501, 
23  Atl.  776;  Harvey  v.  Gunzberg, 
148  Pa.  St.  294,  23  Atl.  1005.  South 
Carolina:  State  v.  Fort,  24  S.  Car. 
510.  South  Dakota:  Banbury  v. 
Sherim,  4  S.  Dak.  88,  55  N.  W.  723. 
Texas:  Shipman  v.  Mitchell,  64 
Tex.  174.  Vermont:  Amsden  v.  At- 
wood,  67  Vt.  289,  31  Atl.  448.  Vir- 
ginia: Emerick  v.  Tavener,  9  Grat. 
220;  Peirce  v.  Grice,  92  Va.  763,  24 
S.  E.  392.  West  Virginia:  Allen  v. 
Bartlett,  20  W.  Va.  46.  Wisconsin: 
Ganter  v.  Atkinson,  35  Wis.  48; 
Peehl  V.  Bumbalek,  99  Wis.  62,  74 
N.  W.  545.  England:  Right  v.  Dar- 
by, 1  Term  R.  161. 

"°1  Term  R.  161,  quoted  in  Rob- 
erson V.  Simons,  109  Ga.  360,  34  S. 
E.  604. 

"'  New  York  &c.  R.  Co.  v.  Randall^ 
102  Ind.  453,  26  N.  E.  122. 


§■   202]  KINDS   OF   TENANCY.  240 

may  expel  him  as  a  trespasser.  The  law  fixes  the  tenant's  liability 
for  holding  over  without  regard  to  his  wishes  in  the  matter.^^^ 
After  a  landlord  gives  the  proper  notice  to  bring  a  tenancy  to  an 
end  and  withholds  his  consent  to  a  renewal  of  the  agreement,  the  ten- 
ant continuing  in  occupation  after  the  expiration  of  the  term,  stands 
in  the  position  of  a  trespasser.  During  such  time  as  he  continues  to 
occupy  he  is  liable  not  for  rent  at  the  rate  reserved  in  the  lease,  but 
for  the  value  of  the  use  of  the  property  or  the  mesne  profits.^"  Fur- 
thermore, the  judgment  in  forcible  detainer  proceedings  being  con- 
clusive evidence  that  the  tenants  were  treated  by  the  landlord  as 
trespassers,  it  was  therefore  proper  for  the  court  to  direct  the  jury 
that  they  might  allow  interest  on  the  rental  value  of  the  premises 
wrongfully  withheld.  ^'^^  It  is  not  necessary  in  order  to  charge  a  ten- 
ant for  another  year  that  the  act  of  remaining  in  possession  after  the 
termination  of  his  lease  should  be  done  by  him  personally.  A  holding 
over  by  a  sub-tenant  is  in  legal  contemplation  a  holding  over  by  the 
lessee,  and  has  the  same  effect.^^^ 

A  new  tenancy  arising  by  implication  from  a  holding  over  is  not 
by  virtue  of  the  original  lease.  This  question  was  brought  before 
the  court  in  determining  the  validity  of  a  reduction  in  rent  during  a 
period  of  holding  over.  It  was  argued  that  the  original  lease  being 
under  seal  could  not  be  changed  by  parol,  but  the  court  replied  that 
the  new  tenancy  was  one  created  by  operation  of  law  and  was  in  the 
nature  of  a  parol  agreement  between  the  parties.^'^^ 

§  202.  The  terms  of  a  year  to  year  holding  are  the  same  as  those 
of  the  lease  which  preceded  it  in  the  absence  of  any  agreement  chang- 
ing them.""    The  presumption  of  law  is  that  the  tenant  holds  the 

"=  Illinois:      Clinton     &c.     Co.    v.  i" Keegan  v.  Kinnare,  123  111.  280, 

Gardner,  99   111.  151;    Goldsborough  14  N.  B.  14. 

V.  Gable,  140  111.  269,  29  N.  E.  722;  i^*  Lambert  v.  Borden,  16  111.  App. 

Keegan  v.  Kinnare,  123  111.  280,  14  431. 

N.  E.  14.     Indiana:     Tolle  v.  Orth,  ^^^Berkowsky    v.    Cahill,    72    111. 

75  Ind.  298.     Nebraska:    Bradley  v.  App.  101;   Roberson  v.  Simons,  109 

Slater,   50  Neb.  682,  70  N.  W.   258.  Ga.  360,  34  S.  E.  604. 

Pennsylvania:     Hemphill  v.   Flynn,  "« Goldsbrough    v.    Gable,    36    111. 

2  Pa.  St.  144.    Rhode  Island:    Provi-  App.  363. 

dence   &c.    Bank   v.    Hall,   16    R.    I.  '"Alabama:     Ames   v.    Schuesler, 

154,   13   Atl.   122.     Tennessee:    Noel  14  Ala.  600;    Crommelin  v.  Thiess, 

V.    McCrory,    7    Coldw.    623.      West  31  Ala.  412.     Arkansas:     Belding  v. 

Virginia:    Voss  v.  King,  38  W.  Va.  Texas  Produce  Co.,  61  Ark.  377,  33 

607,  18  S.  E.  762.     Wisconsin:     Gil-  S.     W.     421.       Colorado:      Sears    v. 

man  v.  City  of  Milwaukee,  31  Wis.  Smith,    3    Colo.    287;    Burkhard    v. 

563.  Mitchell,  16  Colo.  376,  26  Pac.  657. 


241 


TENANCY  FROM  YEAR  TO  YEAR. 


[§  202 


premises  subject  to  all  the  covenants  contained  in  the  original  lease 
which  are  applicable  to  his  present  situation."^  This  general  rule 
would  be  qualified  where  the  written  lease  for  the  first  year  contained 
several  collateral  matters  to  be  done  by  each  party,  which  could  be 
performed  in  the  first  year  only."''  When  the  case  is  of  such  a  nature 
that  the  facts  plainly  revolt  against  material  provisions  in  the  old 
lease,  or  when,  according  to  the  evidence,  there  is  not  only  no  right 
to  infer  the  assent  of  the  parties,  but  positive  proof  that  the  landlord 
unqualifiedly  dissents,  there  is  no  authority  for  holding  that  the  par- 
ties are  subject  as  matter  of  law  to  the  old  provisions.^®"  In  a  case 
where  the  rent  reserved  in  the  original  lease  consisted  in  the  perform- 
ance of  labor  of  such  nature  that,  being  once  performed,  it  cannot 
be  again  done  during  the  period  of  holding  over,  there  was  no  room 
for  the  application  of  the  general  rule.^®^  However,  a  stipulation  in  a 
lease  giving  the  tenant  the  right  to  remove  fixtures  would  continue  to 
regulate  the  rights  of  the  parties  during  the  time  the  tenant  held 
over.^^2  ^  lessee  on  shares  holding  over  for  another  year  is  liable  on 
an  implied  agreement  for  rent  upon  the  terms  of  the  prior  lease.^^* 
It  has  even  been  held  that  a  conditional  limitation  in  the  original 
lease  allowing  the  tenant  to  terminate  it  on  the  happening  of  a  certain 
event,  would  be  implied  in  the  year  to  year  tenancy.  Such  a  provision, 
mutatis  mutandis,  was  applicable  to  the  new  tenancy  and  the  contin- 
gency having  occurred,  the  tenant  had  a  right  to  terminate  the 
lease.  ^** 


Connecticut:  Bacon  v.  Brown,  9 
Conn.  335.  Kentucky:  Whittemore 
V.  Moore,  9  Dana  315.  Maine: 
Wheeler  v.  Cowan,  25  Me.  283. 
Maryland:  Hobbs  v.  Batory,  86  Md. 
68,  37  Atl.  713.  Missouri:  Hunt 
V.  Bailey,  39  Mo.  257.  Nebraska: 
Bradley  v.  Slater,  50  Neb.  682,  70 
N.  W.  258.  New  York:  Webber  v. 
Shearman,  3  Hill  547.  Oregon: 
Parker  v.  Page,  41  Ore.  579,  69  Pac. 
822.  Pennsylvania:  Harvey  v. 
Gunsberg,  148  Pa.  St.  294,  23  Atl. 
1005.  South  Carolina:  Dorrill  v. 
Stephens,  4  McCord  59.  Texas:  San 
Antonio  v.  French,  80  Tex.  575,  16 
S.  W.  440.  Virginia:  Peirce  v. 
Grice,  92  Va.  763,  24  S.  E.  392. 
West  Virginia:  Voss  v.  King,  38 
W.  Va.  607,  18  S.  E.  762.    English: 

Jones  L.  &  T,— 16 


Digby  v.  Atkinson,  4  Camp.  275; 
Dougal  v.  McCarthy,  L.  R.  (1893), 
1  Q.  B.  736;  Roe  v.  Ward,  1  H.  Bl. 
97. 

"« Phillips  v.  Monges,  4  Whart. 
(Pa.)  226;  Laguerenne  v.  Dough- 
erty, 35  Pa.  St.  45;  Vrooman  v.  Mc- 
Kaig,  4  Md.  450. 

"''Diller  v.  Roberts,  13  S.  &  R. 
(Pa.)   60. 

^'"Ives  v.  Williams,  50  Mich.  100, 
15  N.  W.  33. 

'*'  Martin  v.  Hamersky,  63  Kan. 
360,  65  Pac.  637. 

"-Lewis  v.  Perry,  149  Mo.  257,  50 
S.  W.  821. 

'^  Yates  v.  Kinney,  19  Neb.  275, 
27  N.  W.  132. 

'"  Gardner  v.  Board  of  Com'rs,  21 
Minn.  33. 


§    203]  KINDS    OF    TENANCY.  24^ 

Where  a  tenant  holds  over  after  the  expiration  of  his  year,  and  the 
landlord  elects  to  treat  him  as  a  tenant  rather  than  as  a  trespasser, 
by  demanding  rent,  the  tenant  cannot  thereafter,  in  the  course  of 
the  payment  of  his  rent,  create  a  different  tenancy  by  accompanying 
such  payment  with  conditions.^^^  Yet  if  the  tenant  continues  to  hold 
over  after  being  notified  that  the  landlord  would  require  an  increased 
rent,  he  thereby  assents  to  the  increase  of  rent,  and  to  this  extent  the 
terms  of  the  old  lease  do  not  apply.^^®  Mere  negotiations  and  unac- 
cepted offers  are  not,  however,  to  be  considered  as  altering  the  terms 
of  the  leasing.  The  rental  can  only  be  changed  by  a  definite  new  con- 
tract.i" 

§  203.  Option  as  to  yearly  tenancy  rests  with  landlord. — Upon 
the  expiration  of  a  lease  for  years,  the  law  fixes  on  the  tenant  the  duty 
of  vacating  the  leased  premises  and  turning  them  over  to  the  land- 
lord, and  this  duty  is  usually  reinforced  by  express  covenants  in  the 
lease  itself.  It  follows  that  mere  holding  over  by  a  tenant  does  not  of 
itself  renew  the  tenancy.  It  only  gives  the  landlord  an  option  to  re- 
new the  term.^^^  A  tenant  who  wrongfully  holds  over  after  the  end 
of  his  term  does  not  immediately  become  entitled  to  notice  to  quit, 
and  a  short  delay  in  commencing  proceedings  against  him  cannot 
confer  any  such  right.  He  cannot  acquire  such  equities  by  a  mere 
wrongful  holding  over.^^^  In  order  that  a  lessee  holding  over  after 
the  expiration  of  his  term  may  claim  the  privileges  of  a  tenant,  the 
landlord  must  in  some  manner  recognize  the  tenancy  as  existing. 
Where  the  lessor  does  no  act  recognizing  a  continued  tenancy,  the 
tenant  holding  over  is  but  a  tenant  at  sufferance  and  not  entitled  to 
notice  to  quit.^®°  The  covenants  in  the  lease  may  have  a  bearing  on 
the  effect  of  a  holding  over.  Thus  in  one  case  the  lessee  had  cove- 
nanted to  "deliver  up  possession  at  the  expiration  of  the  term  without 

^^  Scott  V.  Beecher,  91  Mich.  590,  ^^  Cairo    &c.    R.    Co.    v.    Wiggins 

52  N.  W.  20.  Ferry   Co.,   82    111.   230;    Jackson  v. 

"^Hunt    V.    Bailey,    39    Mo.    257;  Salmon,  4  Wend.  (N.  Y.)  327;  Jack- 

Despard  v.  Walbridge,  15  N.  Y.  374;  son  v.  McLeod,   12  Johns.    (N.   Y.) 

Gardner    v.    Board    of    Com'rs,    21  182;    Wilde   v.    Cantillon,   1   Johns. 

Minn.  33.  Cas.   (N.  Y.)  123;  Emerick  v.  Tave- 

^"Holley  V.  Metcalf,   12   111.   App.  ner,  9  Grat.    (Va.)    220,  236;    Hard- 

141.  ing  V.  Crethorn,  1  Esp.  57;    Doe  v. 

'^Condon    v.    Brockway,    157    111.  Stennett,    2    Esp.    717;     Bishop    v. 

90,   14  N.   E.    634,   affirming   50    111.  Howard,    2    B.   &   C.   100;    Digby  v. 

App.  625.  Atkinson,   4   Camp.   275;    Hutton  v. 

"'Benfey    v.    Congdon,    40    Mich.  Warren,  1  M.  &  W.  466. 
283. 


343  TENANCY  FROM  YEAR  TO  YEAR.      [§§  204,  205 

further  notice"  and  the  landlord  reserved  the  right  to  "enter  and  re- 
possess the  premises  at  the  end  of  the  period,  or  at  any  time  there- 
after." It  was  held  that  no  year  to  year  tenancy  could  be  inferred 
from  the  landlord's  failure  to  eject  the  tenant  at  the  end  of  the 
term.^^i 

§  204.  The  landlord's  act  of  receiving  rent  implies  such  assent  on 
his  part  to  the  holding  over  as  will  create  a  tenancy  for  another  year.^^- 
It  is  not  permitted  that  the  landlord  should  shift  his  position  and 
adopt  an  inconsistent  attitude.  So  that  after  he  has  accepted  rent 
accruing  during  the  period  of  the  holding  over,  he  cannot  repudiate 
the  tenancy  and  exact  a  penalty  from  the  tenant  for  his  failure  to 
surrender  possession  according  to  the  covenants  in  the  lease.^^^  How- 
ever, acceptance  of  rent  due  under  the  lease  does  not  to  any  extent 
preclude  the  landlord.  And  even  though  the  payment  is  made  and 
accepted  while  the  tenant  is  holding  over,  no  presumption  of  a  year 
to  year  tenancy  arises  from  it."*  In  most  instances  a  demand  for  the 
rent  accruing  after  the  lease  would  be  a  clear  recognition  of  the  ten- 
ancy and  would  establish  the  landlord's  acquiescence.  It  would  be  the 
legal  expression  of  the  landlord's  election.^®^ 

§  205.  It  is  not  necessary  for  the  landlord  to  indicate  his  assent 
to  a  holding  over  by  overt  acts.  Time  only  is  necessary,  in  the  ab- 
sence of  other  evidence,  to  establish  the  consent  or  acquiescence  of  the 
landlord  in  a  case  where  the  landlord,  himself,  is  relying  on  the  re- 
newal agreement.  ^^^  As  a  matter  of  fact  very  slight  acts  on  the  part 
of  the  landlord,  or  a  short  lapse  of  time,  are  sufficient  to  conclude  his 
election  and  make  the  person  holding  over  his  tenant."^  But  wrong- 
ful holding  over  will  not  by  its  long  duration  create  a  tenancy. 
Where  the  holding  over  by  a  lessee  is  admittedly  wrongful  and  without 
the  landlord's  consent,  no  year  to  year  tenancy  is  created,  no  matter 

"^McCanna   v.    Johnston,    19    Pa.  &c.  Co.,  94  111.  App.  492;   Hately  v. 

St.  434.  Myers,  96  II!.  App.  217. 

'='=Roberson    v.    Simons,    109    Ga.  "' Vanderford  v.  Foreman,  129  N. 

360,    34    S.    E.    604;     Critchfield    v.  Car.  217,  39  S.  E.  839. 

Remaley,  21  Neb.  178,  31  N.  W.  687;  ">=  Scott  v.  Beecher,  91  Mich.  590, 

Banbury    v.    Sherin,    4    S.    Dak.    88,  52  N.  W.  20. 

55  N.  W.  723;   Gardner  v.  Board  of  "« Scott  v.  Beecher,  91  Mich.  590, 

Com'rs,  21  Minn.  33;  Amsden  v.  At-  52  N.  W.  20. 

wood,  67  Vt.  289,  31  Atl.  448;  Golds-  '"Kelso  v.  Crilly,  85  111.  App.  568; 

brough  v.  Gable,  140  111.  269,  29  N.  Clinton  &c.  Co.  v.  Gardner,   99   111. 

E.  722.  151,  159. 

"'Board   of  Directors  v.   Chicago 


§    306]  KINDS    OF   TEXAXCY.  244 

how  long  the  holding  over  continues.^^*  The  mere  fact  that  the  land- 
lord takes  no  steps,  after  the  lease  expires  by  its  own  terms,  to  regain 
the  possession  cannot  be  regarded  as  an  act  from  which  an  inference  of 
a  new  tenancy  can  be  drawn.  ^^^  A  tenant  holding  over  does  not  have 
the  same  right  of  election  to  be  regarded  as  a  tenant  for  the  ensuing 
year  or  as  a  trespasser  which  is  accorded  to  his  landlord.  The  very 
circumstance  that  the  landlord  possesses  such  a  power  of  election  pre- 
cludes the  exercise  of  a  similar  right  by  the  tenant.^°° 

§  206.  Dissent  on  part  of  tenant. — It  does  not  prevent  an  implica- 
tion of  a  tenancy  from  year  to  year,  by  reason  of  a  holding  over,  to 
show  that  the  tenant  did  not  intend  to  incur  such  an  obligation,  be- 
cause the  tenant's  intentions  in  the  matter  are  immaterial.-"^  If  a 
tenant  from  year  to  year  holds  over  after  his  tenancy  has  been  ter- 
minated by  notice  to  quit,  it  is  optional  with  the  landlord  either  to 
follow  up  the  notice  by  ejectment  or  to  waive  the  notice  and  hold  the 
tenant  for  another  year,  whether  the  tenant  actually  agrees  to  it  or 
not.  "This  statement  of  law  is  supported  by  many  American  cases.^°^ 
Some  of  them  are  very  strong.  Thus,  in  Conway  v.  StarJciveather,^'^^ 
the  tenant  held  over  fourteen  days,  having  refused  to  renew  the  ten- 
ancy before  his  term  expired;  in  Schuyler  v.  8mith,^°^  tenants  of  a 
wharf  held  over  twenty-one  days  while  another  wharf  was  preparing 
for  them,  they  having  given  notice  before  their  lease  ended  that  they 
should  not  continue  the  tenancy ;  in  Wolff e  v.  Wolff e  and  Bro.,^^^  the 

"'Chicago  &c.  R.  Co.  v.  Perkins,  Telle  v.   Orth,   75   Ind.   298.  Minne- 

12  Ind.  App.  131.  sota:     Smith  v.  Bell,  44  Minn.  524, 

"° Cairo    &c.    R.    Co.    v.    Wiggins  47  N.  W.  263.     Nebraska:    Bradley 

Ferry  Co.,  82  111.  230.  v.  Slater,  50  Neb.  682,  70  N.  W.  258. 

^""Keegan  v.  Kinnare,  123  111.  280,  Michigan:  Mason  v.  Wierengo's 
14  N.  E.  14;  Clinton  &c.  Co.  v.  Card-  Estate,  113  Mich.  151,  71  N.  W.  489. 
ner,  99  111.  151;  Condon  v.  Brock-  New  York:  Conway  v.  Stark- 
way,  157  111.  90,  14  N.  E.  634,  affirm-  weather,  1  Denio  113;  Schuyler  v. 
ing  50  111.  App.  625.  Smith,  51  N.  Y.  309,  10  Am.  R.  609; 

"<«  Chicago,   City   of  v.   Peck,   196  Adams  v.  City  of  Cohoes,  127  N.  Y. 

111.  260,  63  N.  E.  711,  affirming  98  175,  28  N.  E.  25;  Haynes  v.  Aldrich, 

111.  App.  434;    Quinlan  v.  Bonte,  25  133  N.  Y.  287,  31  N.  E.  94.    Pennsyl- 

111.  App.  240;  Goldsbrough  v.  Gable,  vania:     Hemphill   v.   Flynn,    2   Pa. 

49  111.  App.  554;   Berkowsky  v.  Ca-  St.    144;    Graham   v.    Dempsey,    169 

till,  72  111.  App.  101.  Pa.  St.  460,  32  Atl.  408.    Tennessee: 

-'>=  Alabama:      Schuisler    v.    Ames,  Noel  v.  McCrory,  7  Coldw.  623. 

16  Ala.  73;  Wolffe  v.  "Wolff,  69  Ala.  =<«  1  Denio  113. 

549.     Connecticut:    Bacon  v.  Brown,  ='>*  51  N.  Y.  309. 

9  Conn.  334.     Illinois:     Clinton  &c.  ^=69  Ala.  549. 
Co.  V.  Gardner,  99  111.  151.   Indiana: 


I 


245  TENANCY  FROM  YEAR  TO  YEAR.  [§  207 

tenant  held  over  ten  da3'S  after  his  term  expired,  under  notice  pre- 
viously given  that  he  could  not  quit  at  once,  but  would  pay  a  reasona- 
ble rent  for  the  unavoidable  occupancy;  and  in  Clinton  Wire  Cloth  Co. 
V.  Gardner  et  al./°^  the  tenants  held  over  eleven  days  under  notice  that 
they  should  not  remain  without  a  reduction  of  rent,  their  holding 
over  being  in  part  the  result  of  expectation  that  rent  would  be  re- 
duced. It  is  true  that  in  the  cases  cited  the  tenant  was  in  for  a' 
definite  term ;  but  so  long  as  the  letting  is  terminated,  we  do  not  see 
that  it  matters  whether  it  be  terminated  by  efHuxion  of  time  or  notice 
to  quit.  In  Schuyler  v.  Smith,  the  tenant  contended  that  the  relation 
of  landlord  and  tenant  could  only  be  created  by  agreement  and  there 
could  be  no  agreement  without  mutuality.  The  court  replied  that  the 
tenant  held  over  at  his  peril,  the  landlord  having  the  option  to  treat 
him  as  trespasser  or  tenant  for  a  year  longer  on  the  terms  of  the 
prior  lease  so  far  as  applicable,  the  tenancy  arising  by  operation  of 
law  regardless  of  the  tenant's  assent.  .  .  .  The  doctrine  is 
urgently  defended  on  the  ground  that  the  tenant  being  in  possession 
has  the  landlord  at  disadvantage,  and  can  greatly  embarrass  or  defeat 
his  arrangements  for  a  new  letting  by  holding  over,  and  therefore 
should  not  do  so  without  risk  of  being  held  himself."^"^  Even 
where  there  is  an  express  contract  that  a  tenancy  shall  continue  from 
year  to  year  till  the  tenant  gives  three  months'  notice  to  quit,  his  con- 
tinuance in  possession  after  giving  a  notice  to  quit  would  continue  the 
tenancy.  "That  actions  speak  louder  than  words  is  sound  law  as  well 
as  proverbial  wisdom."^^^  A  mere  threat  of  a  month  to  month  tenant 
to  quit  the  premises  unless  the  landlord  repaired  a  leaky  roof  would 
not  put  an  end  to  the  tenant's  liability  for  rent  as  long  as  he  continued 
to  occupy.  If  the  tenant  intended  to  remove,  he  should  have  done  so 
at  the  end  of  the  month.  Having  entered  upon  another  month's 
occupancy  he  must  be  deemed  to  have  made  his  election  to  become  a 
tenant  for  another  month,  and  the  landlord  had  a  right  to  treat  him  as 
such.2o» 

§  207.  Rule  in  England. — The  English  doctrine  is  more  lenient  to 
the  tenant  and  holds  that  his  liability  for  a  j-ear's  rent  can  only  rest 
on  his  implied  consent  to  enter  into  such  an  agreement.  Continuance 
in  possession  would  raise  an  inference  that  he  intended  to  take  the 

-""GG   111.   151.  ="' Graham    v.    Dempsey,    169    Pa. 

="  Providence    &c.    Bank    v.    Hall,     St.  460,  32  Atl.  408. 
16    R.    I.    154,    13    Atl.    122,    in    the         =°«  Flint  v.  Sweeney,  49  Minn.  509, 
words  of  Durpee,  C.  J.  52   N.   W.   136;    Roach  v.   Peterson, 

47  Minn.  291,  50  N.  W.  80. 


208] 


KINDS    OF   TENANCY. 


246 


premises  for  another  year,  and  he  cannot  set  up  a  secret  intention 
which  would  belie  his  apparent  intent.  Nevertheless,  on  first  holding 
over  the  tenant  would,  according  to  the  English  rule,  become  simply 
a  tenant  at  sufferance  and  could  not  be  held  for  another  year  or 
term,  without  his  assent,  express  or  implied,  the  question  of  assent 
being  a  question  of  fact  for  the  jury.^^°  The  English  rule  is  recog- 
nized in  Massachusetts,  in  Missouri,  and,  it  seems,  in  California.-^^ 
In  Edwards  v.  Hale-^^  the  Massachusetts  court,  per  Chapman,  J.,  say : 
*'The  doctrine  that  the  lessor  may  at  his  election  consider  one  who 
holds  over  as  a  tenant  at  will  which  is  stated  in  Conway  v.  StarJc- 
weather^^^  is  contrary  to  the  decision  in  Delano  v.  Montague^^^^  and  we 
do  not  find  it  well  sustained  by  any  authority.  In  order  that  a  new 
estate  at  will  shall  exist,  there  must  be  a  new  contract  either  express 
or  inferable  from  the  dealings  of  the  parties."  Mere  non-delivery 
of  the  keys  for  five  days  after  the  end  of  a  term  would  not  raise  an 
implied  promise  to  pay  rent  for  another  month.  There  must  be 
something  else  to  show  the  existence  of  a  new  contract.  If  the  mere 
non-delivery  of  the  keys  raised  any  implied  contract,  it  would  be  to 
pay  for  use  and  occupation  for  the  time  the  premises  were  actually 
held.  The  statutory  provisions  as  to  agreements  being  tenancies  from 
month  to  month  is  a  provision  of  law  and  not  to  be  confused  with 
such  facts  as  raise  an  implied  contract.^^* 

§  208.     Surrender  rendered  impossible  by  act  of  God. — The  fact 
that  a  tenant  for  a  term  of  years  becomes  seriously  ill  shortly  be- 


'""Ibbs  V.  Richardson,  9  A.  &  E. 
849;  Jones  v.  Shears,  4  A.  &  E. 
832;  Waring  v.  King,  8  M.  &  W. 
571. 

^"  Delano  v.  Montague,  4  Cush. 
(Mass.)  42;  Edwards  v.  Hale,  9  Al- 
len (Mass.)  462;  Emmons  v.  Scud- 
der,  115  Mass.  367;  Neumeister  v. 
Palmer,  8  Mo.  App.  491;  Skaggs  v. 
Elkus,  45  Cal.  154.  In  the  case  last 
cited  the  Supreme  Court  of  Cali- 
fornia use  the  following  language: 
"The  implication  of  a  new  term 
created  by  the  payment  of  rent 
after  the  expiration  of  the  first  term 
is  an  implication  of  fact  only.  It 
it  evidence  from  which  an  agree- 
ipent  for  a  new  or  further  term 
may  be  inferred  or  presumed.  .  If  it 
be  shown  that,  in  point  of  fact,  a 


new  agreement  was  made,  such  new 
agreement  would  destroy  the  im- 
plication of  a  different  term,  which 
might  otherwise  be  presumed  from 
the  subsequent  payment  of  rent. 
So  if  as  here  the  evidence  offered 
on  the  part  of  the  defendant  went 
to  show  that  he  had  expressly  re- 
fused to  accept  a  term  for  one 
year,  that  fact  would  tend  to  over- 
throw and  destroy  the  mere  pre- 
sumption drawn  from  the  subse- 
quent payment  of  rent  that  he  was 
to  continue  to  hold  thereafter  for 
the  space  of  one  year." 

°^"9  Allen    (Mass.)   462. 

^^1  Denio  (N.  Y.)  113. 

»'a4  Cush.   (Mass.)  2. 

"*  Neumeister  v.  Palmer,  8  Mo. 
App.  491. 


i 
I 


247  TENANCY  FROM  YEAR  TO  YEAR.  [§  208 

fore  the  expiration  of  his  term  and  after  removal  operations  have 
actually  begun,  does  not  deprive  the  landlord  of  his  right  to  treat 
the  tenant's  failure  to  complete  the  removal  before  the  lease  expires 
as  a  renewal  of  the  lease  for  another  year.^^^  This  is  the  logical  out- 
come of  the  doctrine  that  the  right  of  a  lessor  to  treat  a  lessee  holding 
over  as  a  tenant  is  not  affected  by  the  fact  that  the  lessee  had  no  in- 
tention of  renewing  his  lease.  And  the  court  remarked,  in  the  course 
of  the  opinion :  "We  think  that  there  is  uniformity  in  the  decisions 
against  the  contention  that  the  intention  to  vacate  as  soon  as  possible 
can  affect  the  right  of  the  landlord  to  elect  to  treat  the  holding  over 
as  a  renewal  of  the  lease  for  a  year.  It  requires  some  express  or 
implied  consent  upon  his  part  to  a  holding  over  upon  other  condi- 
tions." In  another  place  it  is  said :  "If  it  is  contended  that  the  act 
of  God  excuses  one  from  the  performance  of  his  express  contract  to 
yield  possession  at  the  expiration  of  the  lease,  we  are  unable  to 
acquiesce  in  the  contention.  It  is  only  in  those  contracts  which  the 
act  of  God  renders  impossible  of  performance — as  where  the  subject- 
matter  of  the  contract  dies,  or  is  destroyed,  or  where  personal  labor 
is  contracted  for  and  the  person  dies  or  becomes  incapacitated  through 
act  of  God — that  a  party  is  excused  from  performance." 

On  the  other  hand,  the  New  York  Court  of  Appeals  held,  reversing 
the  decision  below,  that  inevitable  accident  or  the  act  of  God  excuses 
a  tenant's  omission  to  surrender  the  premises,  at  least  so  far  as  it 
creates  a  liability  for  a  year's  rent  which  is  implied  by  law.^^^  The 
court  relies  for  authority  on  a  case^^^  decided  in  England  where  an 
admittedly  contrary  doctrine  as  to  the  inference  from  holding  over 
is  in  vogue.  The  circumstance  preventing  a  removal  at  the  proper 
time  was  the  illness  of  a  member  of  the  tenant's  family.  And  the 
court  argue  that  acts  under  such  stress  of  circumstances  could  not 
be  said  to  proceed  from  the  own  volition  of  the  tenant.  The  tenant 
was  not  a  trespasser  during  the  fifteen  days  he  held  over  because  it 
was  not  his  voluntary  act.  And  therefore  the  rule  that  the  landlord 
might  treat  him  as  a  tenant  or  a  trespasser  could  not  be  applied.  The 
court  agrees  that  the  tenant  would  be  liable  for  breach  of  his  cove- 
nant in  the  lease  to  surrender  the  demised  premises  at  the  expiration 
of  the  term.  It  is  said  that  a  duty  or  obligation  imposed  by  law  and 
one  created  by  contract  or  covenant  stand  upon  different  grounds 

^^  Mason     v.     Wierengo's     Estate,  53  N.  E.  700,  reversing  9  App.  Div. 

113    Mich.    151,    71    N.   W.    489,    per  593. 

Hoolier,  J.  =i^  Jones  v.  Shears,  4  A.  &  E.  832. 

""Herter  v.  Mullen,  159  N.  Y.  28, 


§  209]  KINDS  OF  TENANCY.  248 

when  the  party  seeks  to  be  excused  by  the  act  of  God  or  unavoidable 
accident,  or  stress  of  circumstances. 

Three  of  the  seven  judges  taking  part  in  the  decision  dissented 
from  the  views  of  the  majority  and  stood  for  affirmance  of  the  judg- 
ment below.  The  three  dissenting  justices  considered  that  the  ques- 
tion was  settled  on  the  authority  of  two  recent  cases^^^  decided  on  some- 
what similar  facts.  The  decision  will  doubtless  stand  in  New  York, 
though  it  may  well  be  questioned  whether  it  would  be  more  widely 
followed  than  the  opposite  conclusion  reached  from  identical  circum- 
stances by  the  Supreme  Court  of  Michigan. 

§  209.  Necessary  len^h  of  tenant's  holding  over. — Since  the  ob- 
ject of  the  rule  charging  a  tenant  holding  over  with  the  obligation  to 
pay  rent  for  an  entire  year  is  to  compel  a  prompt  surrender  of  the 
leased  premises  at  the  end  of  the  term,  it  follows  that  a  short  period 
of  holding  over  will  incur  the  obligation.  Thus,  holding  over  three 
days  has  been  held  to  make  the  tenant  liable  for  a  full  year's  rent,^^^ 
while  a  great  deal  of  the  litigation  on  the  point  is  over  cases  where 
the  tenant  held  over  from  ten  days  to  two  weeks.  Such  a  length  of 
holding  is  enough  to  charge  the  tenant  for  an  entire  year.^^°  How- 
ever, a  slight  default  on  the  part  of  the  tenant  in  failing  promptly 
to  vacate  the  premises  is  waived  if  the  landlord  subsequently  accepts 
a  surrender  of  possession.  Where  a  tenant  brought  in  the  keys  ten  days 

"^  Adams  v.   City  of   Cohoes,   127  would    be    forthcoming,    and    their 

N.  Y.  175,  28  N.  E.  25;    Haynes  v.  sufficiency  be  subject  to  the  doubt- 

Aldrich,  133  N.  Y.  287,  31  N.  E.  94.  ful  conclusions   of  a  jury,   and  no 

In    the    latter    case    Finch,    J.,    in  lessor   would    ever   know   when    he 

speaking   of   the   rule  that  holding  could  safely  promise  possession  to 

over   creates  a  new  tenancy  for   a  a    new    tenant.     ...     I     reserve 

year,  said:    "The  appellant  does  not  the    question,    also,    whether    there 

deny  the   rule,  seeks  to   qualify   it  might  not  be  an  unavoidable  delay 

so  as  to  mean  that  it  is  only  where  in  no  manner  the  fault  of  the  ten- 

the   tenant   holds   over   voluntarily  ant,    directly   or    indirectly,   which, 

and   for  his  own  convenience  that  would  serve  as  a  valid  excuse." 
the  landlord's  right  arises,  and  that        ^'^  Tolle    v.    Orth,    75    Ind.    298; 

it  does  not  arise  when  the  tenant  Haynes  v.  Aldrich,  133   N.  Y.   287, 

holds  over  involuntarily  and  not  for  31  N.  E.  94. 

his  own  convenience,  but  because  ^-"Wolffe  v.  Wolff,  69  Ala.  549; 
he  cannot  help  it.  I  am  averse  to  Clinton  &c.  Co.  v.  Gardner,  99  111. 
any  such  qualification.  It  would  151;  Conway  v.  Starkweather,  1 
introduce  an  uncertainty  into  a  rule  Denio  (N.  Y.)  113;  Schuyler  v. 
whose  chief  value  lies  in  its  cer-  Smith,  51  N.  Y.  309;  Herter  v.  Mul- 
tainty.  The  consequent  confusion  len,  159  N.  Y.  28,  53  N.  E.  700,  re- 
would     be     very     great.       Excuses  versing  9  App.  Div.  593. 


II 


249         ,      TENANCY  FROM  YEAR  TO  YEAR.     [§§  209a,  210 

after  the  term  expired  and  the  landlord  said  "all  right,"  this  ended 
the  tenancy. ^^^ 

§  209a.  If  the  landlord  is  in  any  way  responsible  for  the  holding 
over  he  cannot  insist  that  the  tenant  be  held  for  another  year.  This 
was  attempted  where  the  only  occupancy  of  the  leased  premises  by  the 
tenant  after  the  expiration  of  the  term  of  the  lease  was  that  his  house- 
hold goods  remained  in  the  house  packed  up  ready  for  removal  for 
three  days  after  the  end  of  the  term.  The  landlord  was  away  and  his 
agent  refused  to  receive  either  the  key  or  the  rent,  but  directed  the 
tenant  to  wait.  In  concluding  its  decision  in  favor  of  the  tenant 
the  court  said :  "The  evidence  establishes  the  fact  that  before  the  re- 
turn of  the  plaintifE  the  goods  of  the  defendant  had  all  been  removed 
from  the  premises,  and  that  defendant  promptly  surrendered  the  key 
of  the  premises  to  the  plaintiff  on  his  return  and  that  the  plaintiff 
accepted  the  same."^^- 

In  Kentucky  a  statute'-^  regulates  cases  where  a  tenant  for  a  year  or 
more  holds  over  after  the  termination  of  a  lease  which  is  to  expire  on 
a  certain  day.  The  effect  of  this  statute  is  that  the  first  ninety  days 
of  holding  over  gives  the  tenant  no  rights  and  imposes  no  liabilities 
on  him;  during  that  period  he  may  be  evicted  without  notice.  After 
the  expiration  of  ninety  days,  the  tenant  becomes  bound  for  another 
year  and  entitled  to  a  term  for  another  year.  A  tenant  holding  over 
less  than  ninety  days  does  not  become  liable  for  an  entire  year's 
rent.22* 

§  210.    Rebutting  presumption  of  year  to  year  tenancy. — As  has 

already  been  seen,  the  implication  of  a  year  to  year  tenancy  from  con- 
tinued occupation  after  the  expiration  of  a  fixed  term  does  not  de- 
pend on  the  actual  assent  of  the  tenant  to  enter  into  such  an  agree- 
ment. At  least  such  is  the  prevailing  American  doctrine.  Yet  the 
rule  is  always  qualified  by  the  proviso  that  there  must  be  no  incon- 
sistent agreement  between  the  parties.    This  is  stated  in  the  form  that 

-^  Walls  V.  Preston,  28  Cal.  224.  would  have  vacated  but  for  the  in- 

■~  Adler  v.  Mendelson,  74  Wis.  464,  terposition  of  plaintiff's  agent.     If 

43  N.  W.  505.     To  same  effect  see  the  landlord  should  be  permitted  to 

Campau  v.  Michell,   103   Mich.   617,  prevail   under   these   circumstances, 

61   N.  W.   890.     In  the  latter   case  it  would  be  permitting  him  to  have 

the  court  states  its  conclusions  as  advantage  of  the  wrongful  acts  of 

follows:     "We  think,   in   this   case,  his  own  agents, 

the  facts  found  by  the  court  below  -'Kentucky  St.,  §  2295. 

show  very  clearly  the  intent  of  the  -'Mendel  v.  Hall,  13  Bush   (Ky.) 

subtenant    to   vacate,    and    that    he  232. 


§  210]  KINDS  OF  TENANCY.  250 

a  contrary  agreement  between  the  parties  relmts  the  presumption  of 
a  year  to  year  tenancy  arising  from  the  continued  occupation.  But 
in  reality  the  presumption  is  one  of  law  which  cannot  be  rebutted. 
The  Supreme  Court  of  Michigan  has  attempted  in  an  excellent  state- 
ment of  the  law  on  this  point  to  reconcile  this  inconsistency.  In 
Scott  V.  Beecher-^  this  statement  occurs:  "The  law  presumes  an 
intention  by  the  tenant  to  continue  the  yearly  tenancy  from  the  hold- 
ing over.  An  agreement  that  such  holding  over  should  not  be  so  re- 
garded might  be  shown  to  rebut  the  presumption,  or  there  might  be 
such  clear  indications  of  an  intention  to  vacate  that  a  holding  over  for 
a  day  would  not  support  the  presumption.  But  in  the  absence  of 
such  agreement  or  such  indications,  the  holding  over  is  the  legal  ex- 
pression of  the  tenant's  intention,  and  all  that  is  necessary  to  com- 
plete the  contract  is  the  consent  or  acquiescence  of  the  landlord." 
The  more  scientific  and  accurate  way  of  stating  the  proposition  is  that 
there  is  a  positive  rule  of  law  which  entitles  a  landlord  to  charge  a 
tenant  holding  over  as  a  tenant  for  the  ensuing  year.  But  when  the 
landlord  has  by  his  conduct  led  the  tenant  to  believe  that  he  will  not 
be  charged  as  tenant  for  the  entire  year,  it  is  axiomatic  that  the 
landlord  cannot  change  his  position  and  fix  an  unexpected  burden  of 
liability  upon  the  tenant.  So  it  follows  that  any  new  agreement  be- 
tween a  landlord  and  tenant  relative  to  the  continued  occupancy  of 
leased  premises  after  the  termination  of  the  term  precludes  the  land- 
lord from  charging  the  tenant  with  liability  for  a  full  year's  rent  by 
reason  of  such  continued  occupancy.^-'' 

This  result  is  not  contingent  on  the  fact  that  the  new  agreement  is 
valid  and  capable  of  enforcement;  it  rests  on  an  estoppel  against  the 
landlord  for  inducing  the  tenant  to  act  on  his  representations.  And 
it  matters  not  that  the  new  contract  was  invalid  under  the  statute 
of  frauds  because  not  in  writing.-"  The  continued  payment  and  re- 
ceipt of  rent  after  the  expiration  of  the  term  is  not  necessarily  incon- 
sistent with  the  existence  of  a  new  agreement  between  the  parties. 

225  91  Mich.  590.  Nebraska:  Bradley  v.  Slater,  50 
"''Alabama:  Singer  Mfg.  Co.  v.  Neb.  682,  70  N.  W.  258.  New  York: 
Sayre,  75  Ala.  270;  Crommelin  v.  Smith  v.  Allt,  7  Daly  492.  North 
Thiess,  31  Ala.  412.  Illinois:  Secor  Carolina:  Harty  v.  Harris,  120  N. 
V.  Pestana,  37  111.  525;  Johnson  v.  Car.  408,  27  S.  E.  90.  Texas:  Ship- 
Foreman,  40  111.  App.  456.  Indiana:  man  v.  Mitchell,  64  Tex.  174. 
Hoffman  v.  McCollum,  93  Ind.  326.  -^Singer  Mfg.  Co.  v.  Sayre,  75 
Iowa:  Dubuque,  City  of ,  v.  Miller,  11  Ala.  270;  Crommelin  v.  Thiess,  31 
Iowa  582.  Maryland:  Biggs  v.  Ala.  412.  Contra,  Parker  v.  Hollis, 
Stueler,    93    Md.    100,    48    Atl.    727.  50  Ala.  411. 


251  TENANCY  FROM  YEAR  TO  YEAR.      [§§  211,  212 

So  such  payment  is  evidence  of  a  year  to  year  tenancy  rather  than 
conclusive  proof  of  it.-^^ 

§  211.  A  covenant  to  pay  rent  at  the  same  rate  for  such  further 
term  as  the  lessees  or  persons  claiming  under  them  shall  hold  the 
premises  or  any  part  thereof  does  not,  in  the  face  of  an  express  cove- 
nant to  deliver  possession,  give  the  lessees  any  right  to  continue  in 
possession  after  the  end  of  the  term.  Still  though  it  does  not  enlarge 
or  extend  the  term,  it  is  nevertheless  a  valid  contract  and  the  law  will 
give  it  effect.  The  effect  of  the  covenant  is  to  fix  the  amount  of  rent 
which  the  tenant  shall  pay  for  his  holding  over.  A  clause  respecting 
the  payment  of  a  pro  rata  rent  in  case  the  lessee  holds  over  is  very 
convenient.  It  often  happens  that  a  tenant  who  intends  to  quit  at  the 
end  of  his  term  is  not  able  to  complete  his  arrangements  promptly, 
and  desires  to  remain  for  a  short  time  after  the  term  has  expired.  It 
is  often  convenient  to  the  landlord  to  permit  him  to  do  so,  provided  he 
acquires  no  rights  thereby,  and  can  be  turned  out  without  notice. 
The  covenant  for  the  payment  of  rent  during  such  holding  over  pre- 
vents all  disputes  in  respect  to  that  matter,  and  the  landlord  may  for- 
bear to  exercise  his  rights  without  losing  them.  If  a  holding  over  is 
for  a  short  time,  a  full  quarter's  rent  would  make  an  unreasonable 
compensation.  Where  the  tenants  holding  over  refused  to  become  ten- 
ants at  will  and  claimed  to  be  tenants  at  sufferance,  the  mere  act  of 
remaining  for  two  months  and  a  half  after  their  term  expired  did  not 
give  the  landlord  a  right  to  hold  them  as  tenants  at  will.  Such  period 
of  holding  over  did  not  change  the  character  of  their  occupation.^-'* 

§  212.  Where  there  is  an  express  renewal  of  a  lease  for  a  year  at 
the  end  of  the  preceding  term,  the  tenant  holds  for  the  definite  period 
of  a  year  and  not  as  a  tenant  from  year  to  year.  If,  at  the  expiration 
of  the  original  lease,  the  tenant  remains  in  possession  under  a  renewal 
of  the  lease,  he  does  not  thereby  become  a  tenant  from  year  to  year, 
but  for  the  definite  period  set  forth  by  tbe  terms  of  the  lease  and  stip- 
ulation. In  such  case  the  tenancy  would  be  one  for  years  and  not  a 
tenancy  from  year  to  year.  As  long  as  the  tenant  holds  over  under 
successive  renewals  he  is  a  tenant  for  years. ^^°  A  tenancy  from  year 
to  year  will  not  be  created  against  the  contrary  intention  of  both  par- 
ties, landlord  as  well  as  tenant.   So  where  evidence  is  introduced  from 

==^ Wilcox  V.  Montour  &c.  Co.,  147  ""Biggs  v.  Stueler,  93  Md.  100,  48 

Pa.  St.  540,  23  Atl.  840.  Atl.   727;    Secor  v.   Pestana,  37   III. 

="' Edwards     v.     Hale,     9     Allen  525. 
(Mass.)  462. 


213] 


KINDS    OF   TENANCY. 


252 


which  a  contract  or  agreement  for  a  definite  time  at  the  same  rent 
may  be  inferred,  the  question  must  be  determined  as  one  of  fact, 
whether  the  holding  over  is  under  such  agreement.  If  a  tenant  for  a 
year  says  to  his  landlord  at  the  end  of  the  year  that  he  will  stay  an- 
other year,  and  the  landlord  assents  to  it,  and  rent  is  paid  at  the 
former  rate,  it  amounts  to  a  leasing  for  a  year,  and  does  not  create  a 
tenancy  from  year  to  year.^^^  It  is  not  necessary  that  the  new  agree- 
ment shall  be  for  a  definite  term.  In  case  the  tenant  agreed  to  pay  rent 
only  so  long  as  he  saw  fit  to  occupy  the  premises,  and  the  landlord 
acquiesced  in  this  and  received  rent  as  such  under  this  agreement,  the 
tenant  was  at  liberty  to  terminate  the  lease  at  any  time  by  surrender- 
ing the  possession. ^^^ 

Where  a  tenant  holds  over  pending  a  treaty  for  another  lease,  he 
cannot  be  held  accountable  as  a  tenant  from  year  to  year,  but  is  a 
tenant  at  will  merely. -^^  It  was  ruled  by  Lord  Kenyon  at  the  be- 
ginning of  the  last  century  that  "if  a  tenant  whose  lease  is  expired,  is 
permitted  to  continue  in  possession,  pending  a  treaty  for  a  further 
lease,  he  is  not  a  tenant  from  year  to  year,  but  so  strictly  a  tenant  at 
will,  that  he  may  be  turned  out  of  possession  without  notice."^^*  So, 
a  lessor's  agreement  to  execute  a  new  lease  on  payment  of  a  cash 
rental,  prevents  him  from  charging  the  tenant  holding  over  with  a 
full  year's  rent.^^^ 

§  213.  Changes  in  the  amount  of  rent. — It  is  not  essential  that  the 
same  amount  of  rent  should  be  paid  every  year  under  a  yearly  tenancy 
extending  over  a  considerable  period  of  time.  As  the  parties  could 
terminate  it  altogether,  so  they  can  change  various  terms  of  the  con- 
tract without  altering  the  nature  or  breaking  the  continuity  of  the 
holding.  It  is  equally  true  that  the  holding  over  after  a  term  for 
years  which  creates  a  tenancy  from  year  to  year,  need  not  be  at  the 
same  rental  as  that  reserved  in  the  lease.  A  change  in  the  rental  is 
not  in  itself  a  new  agreement  creating  an  estate  for  years.  So,  if  the 
only  change  made  is  in  the  amount  of  rent  to  be  paid  and  the  other 
terms  remain  the  same  as  in  the  original  lease,  the  tenure  is  one  from 


« 


-'^  Johnson  v.  Foreman,  40  111. 
App.  456. 

"^Montgomery  v.  Willis,  45  Neb. 
434,  63  N.  W.  794. 

^==  Grant  v.  White,  42  Mo.  285; 
Fall  v.  Moore,  45  Minn.  515,  48  N. 
W.  404.  The  case  of  Wilgus  v. 
Lewis,  8  Mo.  App.  336,  qualifies  this 


rule  at  least  to  the  extent  that  a 
periodical  tenancy  will  arise  where 
no  new  lease  is  agreed  upon  and 
the  tenant  continues  to  remain  in 
possession  and  pay  rent. 

"^  Doe  v.  Stennett,  2  Esp.  717. 

=^^  Dubuque,  City  of,  v.  Miller,  11 
Iowa  583. 


253  TENANCY   FROM    MONTH    TO    MONTH,         [§§    214,    215 

year  to  j^ear  and  not  for  a  definite  period  of  one  year.^^*^  A  new  stipu- 
lation as  to  tlie  amount  of  rent  to  be  paid  can  have  no  efEect  upooi 
the  terms  of  the  holding  in  regard  to  right  of  tenant  to  notice  to 
quit.'^^  A  change  in  the  mode  of  paying  rent  during  the  period  of 
the  holding  over,  as  where  a  partial  crop  rent  was  to  be  paid  wholly 
in  cash,  does  not  prevent  a  year  to  year  tenancy  from  arising. -^^  It 
is  not  a  new  bargain  for  a  definite  time,  but  merely  a  variation  of  the 
performance  of  the  previous  agreement. 

No  new  tenancy  is  created  by  a  mere  agreement  for  an  increase  of 
rent  in  the  middle  of  the  year  of  the  tenancy.  The  term  stands  un- 
changed by  a  promise  to  pay,  for  a  balance  of  a  term,  more  rent  than 
a  tenant  is  required  to  pay  by  the  contract  under  which  he  entered  into 
possession.  Such  change  does  not  terminate  the  tenancy  at  the  time 
at  which  the  increase  was  to  begin,  and  a  new  year  does  not  begin 
to  run  then.^^^ 

§  214.  Where  a  lease  provided  for  a  penalty  of  double  rent  in  case 
tenants  held  over,  the  rights  of  the  landlord  were  either  to  regain 
possession  in  the  ordinary  way  or  to  recover  double  rent  for  such 
time  as  they  held  over ;  and  he  could  not  charge  the  lessees  as  tenants 
from  month  to  month."'**'  But  a  periodic  tenancy  would  be  created  by 
the  landlord's  acceptance  of  rent  at  the  former  rate  after  the  lease  had 
expired  and  while  the  tenant  was  holding  over.^*^ 


IV.      Tenajicy  from  Month  to  Month. 

§  215.     The  reservation  and  payment  of  rent  at  stated  periods  of 

the  year  or  month  is,  in  the  absence  of  express  agreement,  the  prin- 
cipal criterion  to  determine  the  duration  of  the  successive  terms  of  a 
periodic  tenancy.^*^    If  the  term  is  for  a  shorter  period  than  a  year, 

='°Zippar  V.  Reppy,  15  Colo.   260,  =^0  Green  v.  Kroeger,  67  Mo.  App. 

25    Pac.    164;    Rand   v.    Purcell,   58  621;   Deaver  v.  Randall,  5  Mo.  App. 

111.  App.  228;   Second  Nat.  Bank  v.  297. 

O.   E.   Merrill   Co.,   69   Wis.  501,   34  ="  Wilgus    v.    Lewis,    8    Mo.    App. 

N.  W.  514;   Doe  v.  Geekie,  5  Q.  B.  336. 

841,  48  E.  C.  L.  841,  1  C.  &  K.  307.  ="  Blumenberg   v.    Myres,    32    Cal. 

="  Potter   V.    Bower,    2    Wkly.    N.  93;    Skaggs   v.   Elkus,   45   Cal.   154, 

Cas.   (Pa.)   408.  158;  Coffin  v.  Lunt,  2  Pick.  (Mass.) 

=^«  Allen  V.  Bartlett,  20  W.  Va.  46.  70,   76;    Rich  v.   Bolton,   46   Vt.   84, 

=»"  Taylor    v.     Winters,     6     Phila.  14  Am.  R.  615;   Hurd  v.  Whitsett, 

(Pa.)    126,  5  Am.  L.  Rep.    (N.  S.)  4   Colo.   77;    Prickett  v.   Ritter,   16 

438.  111.  96. 


§    215]  KINDS    OF    TENANCY.  254: 

according  to  the  current  of  authorities,  the  holding  over  is  implied 
to  be  for  a  like  term  and  the  notice  to  quit  is  determined  thereby  and 
is  sufficient  if  it  equal  the  length  of  the  term  or  the  interval  between 
the  times  of  payment  of  rent.-*^  "At  common  law,  when  a  tenant  for 
a  fixed  term,  as  for  a  year,  held  over  after  the  expiration  of  his  term, 
paying  rent,  he  was  strictly  a  tenant  at  will,  but  as  tenancies  at  will 
from  their  uncertain  nature  were  not  favored,  there  gradually  grew 
up  the  requirement  that  to  terminate  a  tenancy,  notice  must  be  given 
of  an  intention  to  terminate  at  the  end  of  the  current  period.  So  that 
where  the  original  term  was  for  one  year,  the  tenancy  upon  the  hold- 
ing over  and  receipt  of  rent  became  in  effect  one  not  at  will  strictly, 
nor  for  a  fixed  term,  but  from  year  to  year.  So  where  the  stated 
term  was  for  a  less  period  than  a  year,  as  for  one  month,  the  tenancy 
became  upon  holding  over  and  payment  of  rent  a  tenancy  from  month 
to  month."2** 

Where  no  time  is  mentioned,  and  no  annual  rent  reserved  in  a 
letting,  the  character  of  the  letting  as  to  time  will  be  controlled  by 
the  intervals  between  the  rent  payment ;  monthly  or  weekly  payments 
implying  monthly  or  weekly  tenancies.  This  determines  the  length 
necessary  for  the  time  of  giving  notice  to  quit.^*^  The  doctrine  of 
year  to  year  tenancy  originated  in  respect  to  the  occupation  of  farm- 
ing land  and  the  unit  for  the  periodic  term  was  naturally  a  year. 
So,  to-day  if  a  lessee  for  a  term  of  years  holds  over  after  the  expira- 
tion of  his  term,  the  implication  as  to  a  new  holding  is  for  a  single 
year  only  and  not  for  a  period  equal  to  the  term  of  the  previous 
lease. -*^  The  foundation  upon  which  the  selection  of  a  year  as  the 
unit  was  based  seems  to  be  that  an  annual  rent  was  reserved  in  farm- 
ing leases.  So  the  real  imit  is  not  any  particular  period  of  time,  but 
the  rent  period,  whatever  that  may  be  in  any  given  case.  In  Indiana 
the  doctrine  is  that  when  a  tenant  for  a  fixed  period,  less  than  one 
year,  remains  in  possession  of  the  property  beyond  that  period,  with 
the  consent,  express  or  implied,  of  the  landlord,  it  creates  a  tenancy 
for  another  term  equal  in  time  to  the  one  under  which  he  had  pre- 
viously held.  Thus,  where  a  lessee  for  a  term  of  eight  months  at  a 
monthly  rental  held  over  and  paid  a  month's  rent,  the  term  was  re- 
newed for  another  eight  months.^"     Such  a  conclusion  might,  per- 

="Hurd  v.  Whitsett,   4   Colo.   77;  ='"  Kleespies  v.  McKenzie,  12  Ind. 

Noel  V.  McCrory,  7  Coldw.   (Tenn.)  App.    404;    Providence  &c.   Bank  v. 

627;  1  Greenl.  Cruise,  269,  n.  2.  Hall,  16  R.  I.  154,  13  Atl.  122. 

""  Shirk  V.  Hoffman,  57  Minn.  230,  -"  Rothschild    v.    Williamson, 

58  N.  W.  990,  per  Gilfillan,  C.  J.  Ind.  387;   Bollenbacker  v.  Fritts, 

^"Steffens  v.  Earl,  40  N.   J.  Law  Ind.  50. 
128;  Bright  v.  McOuat,  40  Ind.  521. 


255  TENANCY    FROM    MONTH    TO    MONTH.  [§    216 

haps,  follow  from  the  Indiana  statute,  but  at  common  law  it  does 
not  seem  to  result  either  on  grounds  of  policy  or  of  legal  principles. 
A  monthly  rent  was  paid  and  the  rent  periods  should  have  been  the 
test  as  to  the  periodic  tenancy  arising  from  a  holding  over  so  that  a 
tenancy  from  month  to  month  would  result.  In  accordance  with  this 
conclusion  it  was  held  in  another  jurisdiction  that  a  lessee  holding 
over  after  a  written  lease  for  six  months  at  a  monthly  rent  became  a 
tenant  from  month  to  month.  Remaining  in  possession  for  two 
months  after  the  expiration  of  the  lease,  with  payment  of  rent  each 
month  at  the  rate  provided  for  in  the  lease  indicates  nothing  more 
than  a  tenancy  from  month  to  month.^*^ 

Where  a  wharf  and  ware-room  in  a  commercial  town  were  the  sub- 
ject of  a  demise  and  the  term  of  the  letting  was  indefinite,  it  was 
held  that  the  jury  need  not  necessarily  infer  that  the  letting  was  for 
a  year,  as  in  the  case  of  an  agricultural  lease,  but  the  jury  could 
find  that  it  was  understood  by  the  parties  that  the  letting  should  be 
for  a  shorter  time.^*® 

§  216.  A  tenancy  from  month  to  month  may  be  created  by  express 
agreement.  Such  would  he  the  case  where  the  original  letting  was 
for  a  short  period  and  the  parties  agreed  upon  an  extension  from 
month  to  month  after  the  end  of  the  term.  Thus  a  written  lease  for 
six  months  at  a  monthly  rent  contained  a  clause  that  it  should  be 
extended  as  a  month  to  month  tenancy.  Therefore,  the  lessee  held 
under  an  express  agreement  that  he  was  to  be  a  tenant  from  month  to 
month.  Having  accepted  the  contract,  he  would  not  subsequently  be 
heard  to  complain  of  its  terms. ^^°  As  has  already  been  stated  in  this 
chapter,  a  tenancy  for  the  period  of  one  month  is  not  a  tenancy  from 
month  to  month.  They  are  different  estates,  with  different  incidents 
and  are  designated  in  law  by  different  technical  terms.  There  is  a 
substantial,  not  a  mere  verbal  difference.  A  tenancy  for  one  month 
is  technically  a  term  for  years,  and  not  a  tenancy  from  year  to  year 
or  from  month  to  month.  But  if  the  tenant  for  one  month  holds  over 
after  the  expiration  of  the  month,  he  would  then  become  a  tenant 
from  month  to  month. ^^^  Wliere  a  person  rents  premises  at  a  certain 
rate  per  month  and  holds  over  for  several  months,  paying  the  same 
rent  without  any  new  agreement,  he  becomes  a  tenant  from  month  to 

-'^  Backus  v.  Sternberg,  59  Minn.  -="  Pappe  v.  Front,  3  Okla.  260,  41 
403,  61  N.  W.  335.  Pac.  397. 

^^  Cooke  V.  Norris,  7  Ired.  L.  (N.  -"  Stoppelkamp  v.  Mangeot,  42 
Car.)  213.  Cal.  316;  Hislop  v.  Moldenhauer,  2a 

Ore.  119,  31  Pac.  252. 


§•   216]  KINDS    OF    TENANCY.  256 

month.^^^  In  case  a  tenant  is  put  into  possession  at  an  agreed  monthly 
rental  without  any  provision  as  to  the  length  of  time  he  shall  occupy 
it  may  either  be  considered  as  an  express  arrangement  for  a  month  to 
month  tenancy  or  as  a  renting  for  a  single  month,  which  becomes  a 
tenancy  from  month  to  month  by  holding  over  and  continued  pay- 
ment of  rent.  The  doctrine  has  been  stated  as  follows :  "When,  how- 
ever, we  are  dealing  with  the  question  of  an  implied  renewal  of  a 
tenancy,  all  the  terms  of  the  former  lease  must  be  considered.  The 
purpose  is  not  to  make  a  new  lease  essentially  different,  but  to  con- 
tinue the  former  so  far  as  its  terms  may  be  applicable.  In  its  very 
nature  the  implied  renewal  of  a  lease  assumes  a  continuation  of  its 
characteristic  features.  Hence,  if  a  landlord  elect  to  treat  one  hold- 
ing over  as  a  tenant,  he  thereby  affirms  the  form  of  tenancy  under 
which  the  tenant  previously  held.  If  that  was  a  tenancy  by  the 
month,  it  will  presumptively  so  continue."-^^  In  either  case  the  gen- 
eral rule  is  that  a  tenant  holding  by  a  verbal  letting  for  an  indefinite 
term  at  a  monthly  rental  becomes  a  tenant  from  month  to  month.-^* 
No  time  being  specified  the  letting  is  in  its  origin  a  letting  for  a  single 
month  and  is  renewed  by  the  tacit  assent  of  the  parties  at  the  be- 
ginning of  every  succeeding  month.^^^  The  mere  fact  that  a  tenant 
under  such  an  arrangement  continues  to  occupy  for  two  years  does 
not  have  the  effect  of  making  him  a  tenant  from  year  to  year.  The 
rule  that  the  law  favors  tenancies  from  year  to  year  applies  only  as 
between  such  tenancies  and  tenancies  at  will.^^'' 

In  Oregon,  however,  leasing  a  building  at  a  monthly  rent  without 
specifying  the  term,  does  not  create  a  tenancy  by  the  month  which 
may  be  terminated  by  ten  days'  notice,  but  a  tenancy  at  will  or  from 
year  to  year,  according  to  the  circumstances  necessitating  thirty  days' 
notice  for  its  termination.  The  theory  of  this  case  is  that  a  definite 
leasing  for  the  period  of  one  month  must  be  established  before  a  hold- 
ing over  would  create  a  tenancy  from  month  to  month.  The  cir- 
cumstances of  the  case  negative  any  such  assumption.    Nowhere  does 

=»=  Branton  v.  O'Briant,  93  N.  Car.  York:     Wilson    v.    Taylor,    8    Daly 

99_  253.      Compare    Spies    v.    Voss,    16 

'^'Hollis  v.  Burns,  100  Pa.  St.  206,  Daly  171.    North  Carolina:    Branton 

45  Am.  R.  379,  per  Mercur,  J.  v.  O'Briant,  93  N.  Car.  99.     Texas: 

="  Colorado:     Edmundson   v.    Pre-  H.  R.  E.  &c.  Assn.  v.   Cochran,  60 

ville,  12  Colo.  App.  73,  54  Pac.  394.  Tex.    620.     Utah:     Utah   &c.    Co.   v. 

Illinois:     Sebastian  v.   Hill,   51   111.  Garbutt,  6  Utah  342,  23  Pac.  758. 

App.    272.      Michigan:      Haines    v.  ^^^ Edmundson  v.  Preville,  12  Colo. 

Beach,  90  Mich.  563,  51  N.  W.  644.  App.  73,  54  Pac.  394. 

Minnesota:     Rogers    v.    Brown,    57  ==•  Jones  v.  Willis,  8  Jones  L.   (N. 

Minn.    223,    58    N.    W.    981.      New  Car.)  430. 


257  TENANCY   FEOM   MONTH   TO   MONTH.  [§   217 

the  evidence  indicate  that  any  time  was  specified  or  agreed  upon,  and 
if  the  leasing  was  not  for  a  specified  term  of  one  month,  there  was 
no  error  in  refusing  to  hold  that  there  was  a  tenancy  from  month  to 
month.^^^ 

§  217.     Effect  of  void  lease  to  render  time  for  termination  definite. 

It  has  already  been  stated  as  a  general  rule  that  payment  of  a 
monthly  rent  and  holding  for  an  indefinite  time  creates  a  tenancy 
from  month  to  month.  According  to  the  cases  in  England  and  in 
many  jurisdictions  of  this  country,  an  agreement,  which  is  unenforce- 
able because  not  reduced  to  writing  as  required  by  the  statute  of 
frauds,  will  nevertheless  have  the  efl:ect  of  setting  a  time  for  the 
holding  to  end  and  prevent  the  occupancy  from  becoming  one  for  an 
indefinite  time.  The  agreement  regulates  the  terms  upon  which  the 
tenancy  subsists  in  all  respects  except  as  to  the  duration  of  the  term.^^^ 
It  is  a  reasonable  inference  that  the  parties  intended  a  tenancy  on  the 
terms  of  the  original  agreement,  and  the  law  implies  a  new  contract 
between  the  parties  corresponding  therewith,  so  far  as  it  is  not  in 
conflict  with  the  statute.-^*  Occupation  for  several  years  under  a  void 
lease  for  years  has  been  held  to  create  a  tenancy  from  year  to  year, 
although  rent  was  paid  monthly,  because  that  might  have  been  merely 
for  the  sake  of  convenience  and  was  not  inconsistent  with  a  letting 
from  year  to  year.^^* 

However,  there  is  authority  for  the  opinion  that  at  no  time  can  a 
parol  demise,  void  under  the  statute  of  frauds,  be  resorted  to  for  the 
purpose  of  ascertaining  the  duration  of  the  term.^*'^  If  the  void  lease 
can  be  looked  at  for  the  purpose  of  determining  the  duration  of  the 
term,  the  statute  of  frauds  is  evaded  beyond  doubt;  so  the  question 
whether  the  payment  of  rent  was  made  with  reference  to  a  yearly, 
monthly,  or  other  holding  should  be  determined  without  reference  to 
the  void  demise.  To  create  a  year  to  year  tenancy,  payment  of  rent 
must  mean  payment  with  reference  to  a  yearly  holding.  When  city 
property  is  involved,  occupancy  and  monthly  payments  as  for  each 
month's  rent  are  insufficient,  standing  alone,  to  indicate  an  intention 

="Hislop  V.  Moldenhauer,  23  Ore.  ^'"'Laughran    v.    Smith,    75    N.    Y. 

119,  31  Pac.  252.  205;   Fougera  v.  Cohn,  43  Hun    (N. 

'='Doe  v.  Bell,  5  Term  R.  471;   1  Y.)   454,  affirmed  in  118  N.  Y.  309, 

Cruise  Dig.  281-284.  28  N.  Y.  St.  684. 

-^''Langhran    v.    Smith,    75    N.    Y.  ="  Warner    v.    Hale.    65    111.    395; 

205;    People  v.  Rickert,  8  Cow.    (N.  Wheeler  v.  Frankenthal,  78  111.  124; 

Y.)  226;  Clayton  v.  Blakey,  8  Term  Brownel  v.  Wech,  91  111.  523. 
R.  3. 

Jones  L.  &  T.— 17 


§    217]  KINDS    OF    TENANCY.  258 

to  create  a  yearly  tenancy.  These  acts  cannot  be  construed  as  indicative 
of  anything  more  than  an  intention  to  create  a  tenancy  from  month  to 
month,  and  the  effect  thereof  cannot  be  changed  by  the  mere  length 
of  time  the  occupation  has  continued.  If  the  void  lease  cannot  be  re- 
ferred to  during  the  first  twelve  months,  it  is  inconsistent  and  illogical 
to  say  that  by  the  mere  lapse  of  time  the  inference  of  a  new  and  valid 
contract  arises.-*'^  In  one  case  the  premises  were  demised  by  parol  for 
one  year  at  a  stipulated  rent,  payable  monthly.  Under  it  the  lessees 
entered  into  possession,  and  paid  the  rent  as  it  accrued  for  a  part  of 
the  year.  They  thereby  became  tenants  from  month  to  month  and  as 
such  would  have  been  entitled  to  a  month's  notice  to  quit,  but  they 
could  not  be  held  for  a  full  year.^^^  In  a  case  occurring  subsequently 
a  parol  lease  for  a  year  was  made  and  rent  was  reserved,  payable  in 
monthly  instalments.  The  tenant  occupied  the  whole  term  and  held 
over.  The  court  decided  he  also  was  a  tenant  from  month  to  month  and 
not  one  from  year  to  year.  Where  a  parol  lease  is  made,  fixing  the 
amount  of  rent  and  the  time  of  its  payment,  and  fixing  the  term  at  a 
greater  period  than  one  year,  it  is  clearly  within  the  statute  of  frauds ; 
and  the  tenant  entering  under  such  voidable  contract,  and  paying  rent 
at  the  sum  fixed  by  the  contract,  becomes  a  tenant  from  month  to 
month.  Being  such  a  tenant  and  having  made  payment  of  rent,  and 
holding  over  from  month  to  month,  he  is  liable  monthly  for  the  rent 
to  be  paid  by  the  terms  of  the  contract  under  which  he  entered.^®* 
Nevertheless  the  inconsistent  and  illogical  result  of  making  a  distinc- 
tion between  the  holding  for  the  first  and  for  subsequent  years  was 
supported  in  New  York.  A  tenant,  who  for  the  first  year  of  his 
occupation  held  from  month  to  month,  became  bound  for  a  year  by 
holding  over  after  the  expiration  of  the  first  twelve  months.^^*^^ 

Where  a  party  enters  into  the  possession  of  premises  under  an  agree- 
ment to  accept  a  lease  for  twenty  months,  and  subsequently  refuses  to 
accept  the  lease,  he  becomes  by  such  refusal  a  tenant  at  will  or  by 
sufferance,  and  may  be  ejected  immediately.  But  if  the  landlord  sub- 
sequently accepts  rent  from  the  tenant  monthly,  according  to  the 
original  agreement,  a  tenancy  from  month  to  month  is  cieated,  com- 
mencing from  the  time  of  entry 


266 


=«=  Johnson  v.  Albertson,  51  Minn.  ="  Marr  v.  Ray,  151  111.  340,  37  N. 

333,  53  N.  W.  642;  Backus  v.  Stern-  E.  1029. 

berg,  59  Minn.  403,  61  N.  W.  335.  "='  Lawrence     v.      Hasbrouck,      21 

=«'Warner    v.    Hale.    65    111.    395;  Misc.  (N.  Y.)  39,  46  N.  Y.  S.  868. 

Brownell  v.  Welch,  91  111.  523,  fol-  =""  Anderson  v.  Prindle,  23  Wend, 

lowed  in  People  v.   Darling,  47   N.  (N.  Y.)  616,  affirming  19  Wend.  (N. 

Y.  666.  Y.)  391. 


359  TENANCY    FROM    MONTH    TO    MONTH.         [§§    218,    219 

§  218.  A  lessee  for  a  year  who  holds  over  after  his  term  expires 
becomes  a  tenant  from  year  to  year  even  though  the  rent  is  payable 
in  monthly  instalments.  Where  a  party,  holding  premises  for  a  cer- 
tain term,  under  a  written  lease,  holds  over  the  term,  the  law  will  com- 
pel him  to  pay  rent  according  to  the  written  lease.  Though  the  pay- 
ment of  rent  was  monthly  it  does  not  imply  a  renting  from  month  to 
month,  against  the  testimony  that  the  letting  was  for  one  year,  on 
certain  monthly  payments.  The  lessees  cannot,  therefore,  abandon 
the  premises  without  paying  rent  for  the  second  year  upon  which  they 
have  entered.^'^^  In  one  case  the  facts  showed  a  verbal  agreement  for 
one  year,  at  ten  dollars  a  month,  and  for  a  second  year  at  eleven  dol- 
lars. This  being  so,  the  holding  over  and  aceptance  of  rent  continued 
it  as  a  tenancy  from  year  to  year  and  not  from  month  to  month.  The 
fact  that  rent  was  payable  monthly  did  not  make  it  any  less  a  contem- 
plated yearly  holding.-"^ 

It  is  permissible  that  an  annual  rent  be  made  payable  in  monthly 
instalments  for  the  sake  of  convenience.  This  is  not  the  same  as  the 
reservation  of  a  monthly  rent.-'^'' 

For  a  tenant  from  month  to  month  to  begin  to  pay  rent  at  quarterly 
periods  would  not  change  tlie  tenancy  from  one  from  month  to  month 
into  one  for  quarterly  periods. ^^"^ 

§  219.  A  tenancy  from  month  to  month  is  not  a  continuing  right 
of  possession;  but  as  in  the  case  of  a  tenancy  from  year  to  year,  it  is 
taken  to  end  and  recommence  at  the  expiration  of  every  month.-"^ 
Nevertheless,  tenants  from  month  to  month  are  supposed  to  continue 
their  rental  for  each  new  month  upon  the  same  terms  as  for  the  pre- 
vious month,  so  a  reduction  of  the  rent  in  a  monthly  letting  would  be 
permanent  even  though  no  time  were  specified.-^-  A  month  to  month 
tenancy  does  not  necessarily  begin  at  the  beginning  of  a  month,  but 
may  have  its  point  of  beginning  at  any  time  during  the  month.^^^ 

The  act  of  paying  rent  to  the  purchaser  of  the  reversion  does  not 
create  a  new  tenancy,  but  is  merely  a  recognition  of  the  old  one.   If  a 

="Gladwell   v.   Holcomb,   60   Ohio  ^n  Bowman    v.    Sandgren,    37    111. 

St.  427,  54  N.  E.  473;   McKinney  v.  App.    160;     Clarke    v.    Thatcher,    9 

Peck,  28  111.  174.                                 "  Mo.    App.    436;    citing    Tomkins    v. 

="8  Schneider  v.  Lord,  62  Mich.  141,  Lawrence,  8  C.  &  P.  729;    Gandy  v. 

28  N.  W.  773.  Jubber,  5  B.  &  S.  78. 

■""  Nickolls  V.  Barnes,  39  Neb.  103,  ="=  Corson  v.   Berson,   86   Cal.  433, 

57  N.  W.  990,  reversing  s.  c.  32  Neb.  25  Pac.  7. 

195,  49  N.  W.  342.  -"Russell   v.    McCartney,    21    Mo. 

""London  &c.  Bank  v.  Curtis,  27  App.  544. 
Wash.  656,  68  Pac.  329. 


I    230]  KINDS    OF    TEXANCY,  360 

tenancy  was  originally  from  month  to  month  while  the  reversion  was 
in  the  hands  of  the  original  lessor,  it  would  still  continue  to  be  a  ten- 
ancy from  month  to  month  while  the  reversion  was  in  the  hands  of  his 
grantee.  Moreover,  it  would  be  the  same  holding,  and  a  new  term  would 
not  begin  at  the  time  of  the  transfer  of  the  lessor's  interest."^  Where 
either  a  month  to  month  term  or  the  reversion  is  assigned  and  the 
assignee  recognizes  the  tenancy  as  continuing,  it  will  continue  just  as 
it  was  between  the  original  parties,"^  A  mere  transfer  of  title  does 
not  in  any  way  change,  modify  or  affect  a  lease  from  month  to  month ; 
but  the  grantee  simply  takes  the  place  of  the  grantor,  and  becomes  the 
landlord  of  the  tenant,  and  the  lease  continues  as  before."^ 

The  distinction  between  tenancies  from  month  to  month  and  at  will 
is  unimportant  in  those  jurisdictions  where  a  month's  notice  is  re- 
quired to  terminate  a  tenancy  at  will.  So  courts  sometimes  fail  to 
discriminate  between  the  two.^^^ 


V.    Tenancy  at  Sufferance. 

§  220.  General  nature  of  holding. — A  lessee  for  years  has  an  es- 
tate in  the  demised  land ;  a  tenant  from  year  to  year  has  a  qualified 
estate ;  and  a  tenant  strictly  at  will  holds  lawful  possession  until  his 
tenancy  has  been  brought  to  an  end  by  some  act  of  the  landlord.  But  a 
tenancy  by  sufferance  is  not  a  tenancy  at  all ;  it  is  merely  not  an  adverse 
possession ;  the  so-called  tenant  is  merely  not  a  disseisor.  It  has  been 
aptly  described  by  saying  that  "A  tenancij  hy  sufferance  is  not  hy  the 
consent  hut  hy  the  laches  of  the  owner,  and  it  follows  that  where  the 
owner  has  been  guilty  of  no  laches  there  can  be  no  tenancy  at  suffer- 
ance."2^*  It  has  never  been  required  that  there  should  be  privity  either 
of  contract  or  estate  between  the  parties  to  a  tenancy  at  sufferance."^ 
Whenever  the  continued  possession  has  been  clearly  assented  to,  so  as 
to  become  a  holding  by  assent,  instead  of  by  mere  laches,  the  possession 
would  cease  to  be  wrongful,  which  a  tenancy  by  sufferance  to  a  certain 
extent  always  is,  and  the  tenancy  at  sufferance  would  be  changed  to 


="Hurd   v.  Whitsett,   4   Colo.   77;  ="  Haines  v.  Beach,  90  Mich.  563, 

Shaw  v.  Schietinger,  51  N.  J.  Law  51  N.  W.  644. 

152,   16   Atl.   186;    Marquart   v.   La  "» Moore  v.  Morrow,  28  Cal.  551, 

Farge,  5  Duer  (N.  Y.)  559.  554,   per    Shafter,    J.;    Spalding   v. 

2"  Shaw  V.   Schietinger,   51   N.   J.  Hall,  6  D.  C.  123;   Rowan  v.  Lytle, 

Law  152,  16  Atl.  186.  11  Wend.   (N.  Y.)   616. 

''^ Macdonough    v.    Starbird,    105  "'Smith   v.    Littlefield,    51   N.   Y. 

Cal.  15,  38  Pac.  510.  539;   Bennett  v.  Robinson,  27  Mich. 

26;  1  Cruise  Dig.,  tit.  9,  ch.  2,  §  4. 


261  TENANCY  AT  SUFFERANCE.         .     [§  221 

one  at  will.^^"  The  distinguishing  feature  of  a  holding  by  sufferance 
is  the  absence  of  consent.  There  is  merely  a  failure  to  take  affirmative 
steps  to  oust  the  occupant.  This  of  itself  does  not  show  consent  to  the 
holding. 

In  speaking  of  an  occupation  the  character  of  which  was  not  clear, 
Jackson,  J.,  speaking  for  the  Supreme  Court  of  Massachusetts,  said: 
"If  there  was  any  agreement  he  could  not  be  a  tenant  at  suiferance,"^^^ 
This  kind  of  tenancy  arises  from  the  termination  of  some  estate  less 
than  the  fee,  and  held  in  subordination  to  the  fee.  Any  one  who  con- 
tinues in  possession  without  agreement  after  the  determination  of  the 
particular  estate  by  which  he  gained  it  becomes  a  tenant  at  suffer- 
ance.^^^  "Tenants  per  autre  vie  after  the  death  of  the  cestui  qui  vie, 
tenants  for  years  whose  terms  have  expired,  tenants  at  will  whose 
estates  have  been  determined  by  alienation  or  by  the  death  of  the  lessor, 
undertenants  holding  over  after  the  expiration  of  the  original  lease, 
and  a  grantor  who  agrees  to  give  possession  by  a  particular  day  and 
holds  over,  are  tenants  at  sufferance."^*' 

§  221.  Arises  on  holding  over. — T\^iere  the  term  of  holding  of  a 
tenant  for  life  or  for  years  comes  to  an  end  and  he  nevertheless  con- 
tinues in  occupation  of  the  demised  premises,  the  tenant  thereby  be- 
comes a  tenant  at  sufferance.^**  Such  a  holding  is  not  at  will,  because 
no  consent  to  it  can  be  implied  on  the  part  of  the  landlord,  and  without 
the  consent  of  the  landlord  there  cannot  arise  a  tenancy  at  will.-*^  So 
a  lessee  for  a  fixed  term  agreeing  to  quit  upon  a  sale  of  the  premises 
became  a  tenant  at  sufferance  by  holding  over  after  the  sale  had  been 
consummated.^*^  If  a  tenancy  at  will,  under  a  verbal  lease,  dependent 
on  a  condition,  is  terminated  by  a  breach  thereof,  the  tenant  holding 
over  becomes  a  tenant  at  sufferance.  The  reason  for  this  is  that  a  con- 
tingent limitation  is  valid  to  end  a  tenancy  at  will  without  any  notice 
to  quit.^*^ 

A  tenant  at  sufferance,  holding  over  after  the  expiration  of  a  written 

=*"  Bennett  v.   Robinson,   27   Mich.  v.   Lyons,   152   Mass.   310,   25   N.   E. 

2'5.  721;    Smith  v.   Littlefield,   51    N.   Y. 

-'^  Johnson  v.  Carter,  16  Mass.  443.  539;     Coomler    v.    Hefner,    86    Ind. 

=«=Cook  v.  Norton,  48  111.  20.  108;  Mendel  v.  Hall,  13  Bush.  (Ky.) 

=««  Brown  v.  Smith,  83  111.  291,  per  232. 

Breese,  J.  =«  Ferine  v.   Teague,   66  Cal.   446, 

="Abeel  v.  Hubbell,  52   Mich.  37,  6  Pac.  84. 

17  N.  W.  531;  Hauxhurst  v.  Lobree,  =«"  Hollis  v.  Pool,  3  Mete.   (Mass.) 

38   Cal.    563;    Poole   v.    Engelke,    61  350. 

N.  J.  Law  124,  38  Atl.  823;   Hanson  ="  Creech    v.     Crockett,    5     Gush. 

V.  Johnson,  62  Md.  25,  29;   Warren  (Mass.)  133. 


§  231]  KINDS  OF  TENANCY.  262 

lease,  does  not  become  a  tenant  at  will  by  virtue  of  stipulations  that  he 
will  "during  the  term  and  such  further  term  as  he  holds  possession" 
pay  a  certain  quarterly  rent.  The  lease  in  the  case  under  consideration 
contained  the  stipulations  on  the  subject  of  holding  over  which  it  is 
necessary  to  consider.  The  covenants  for  the  payment  of  rent,  in  case 
the  lessees  should  hold  over,  did  not  give  them  the  right  to  hold  over. 
Although  it  was  a  valid  contract,  it  did  not  enlarge  or  alter  the  term. 
When  the  lessors  notified  the  lessees  that  they  should  regard  them  as 
tenants  at  will,  the  lessees  replied  that  they  regarded  themselves  as 
tenants  at  sufferance.  The  lessees  thus  refused  to  consent  to  the  crea- 
tion of  any  tenancy  more  permanent  than  a  tenancy  at  sufferance.^*^ 

The  law  is  that  a  tenant  for  life  cannot  make  a  lease  for  a  longer 
period  than  his  own  term,  unless  the  remainder-man  joins ;  and  that, 
when  a  person  is  in  possession  under  a  tenant  for  life,  and  the  latter 
dies,  such  sub-tenant  then  becomes  a  tenant  by  sufferance  to  the  re- 
mainder-man.^^^  But  if  the  lessee  of  the  life  tenant  is  not  in  possession 
or  does  not  hold  over,  a  mere  recognition  by  the  remainder-man  of  a 
lease  previously  made  by  the  life  tenant  does  not  constitute  such  ten- 
ancy. The  lessee,  never  having  occupied  the  premises,  owed  no  duty  of 
fealty  to  the  remainder-man.  There  was  no  privity  of  contract  between 
these  parties,  and  the  death  of  the  tenant  for  life  did  not  operate  as  an 
assignment  of  the  covenants  in  the  lease.  The  personal  representatives 
of  the  life  tenant  may  be  entitled  to  recover  the  rent  due  on  the  contract 
up  to  the  time  of  his  death ;  but  the  right  of  the  remainder-man  does 
not  arise  or  spring  from  the  lease  made  by  the  tenant  for  life.  If  it 
exists  at  all,  it  comes  from  the  continued  occupation  of  the  lessee.^^" 
The  tenant  of  a  widow  having  dower  interest  becomes  a  tenant  at  suf- 
ferance to  the  heirs  by  his  continued  occupation  after  the  death  of  the 
widow.  Such  a  tenancy  at  sufferance  would  continue  the  possession  of 
the  heirs  and  prevent  the  statute  of  limitations  from  running  against 
their  right  to  disaffirm  a  conveyance  made  during  minority.^^^  The 
holding  of  the  occupant  in  such  case  would  not  be  adverse  to  the  heir 
who  acquired  the  title  to  the  land  after  the  death  of  the  dowress.  The 
tenant  could  not  set  up  a  claim  of  ownership  by  virtue  of  a  tax  title 
which  he  had  bought  in.^^^ 

==^  Edwards     v.     Hale,     9     Allen  v.  Sweeney,  14  R.  I.  581;   Manning 

(Mass.)   462.  v.  Brown,  47  Md.  506,  510. 

'«'  Peters  v.  Balke,  170  111.  304,  48  ='°  Wright  v.  Graves,  80  Ala.  416. 

N.  E.  1012,  in  the  words  of  Justice  =^^  Harvey  v.  Briggs,  68  Miss.  60, 

Magruder.     As  same  see  Wright  v.  8  So.  274. 

Graves,  80  Ala.  416;  Horsey  v.  Hor-  ='=  Lyebrook  v.  Hall,  73  Miss.  509, 

sey,   4    Harr.    (Del.)    517;    Kenney  19  So.  348. 


263  TENANCY  AT  SUFFERANCE.  [§  222 

Where  an  easement  was  taken  by  power  of  eminent  domain  in  prem- 
ises under  lease,  the  tenant  holding  over  after  the  end  of  his  term  be- 
came a  tenant  at  sufferance  to  his  former  landlord.  Inasmuch  as  the 
fee  was  not  taken,  the  plaintiff  remained  the  owner  of  the  fee,  and  the 
defendant,  remaining  in  occupation,  was  liable  as  a  tenant  at  suffer- 
ance. The  tenant  was  not  evicted  here,  but  continued  to  enjoy  the 
premises.  It  was  of  no  consequence  that  everybody  else  on  the  line  of 
the  taking  was  disturbed  in  their  occupation  so  long  as  this  tenant 
was  not.^^^ 

§  222.  To  constitute  a  tenancy  by  sufferance  there  need  not  have 
"been  any  prior  contract  of  letting ;  all  that  is  necessary  is  that  the  ten- 
ant should  have  entered  into  possession  of  the  premises  lawfully  and 
shall  continue  to  hold  after  the  termination  of  his  right;  provided, 
however,  that  he  does  not  come  in  by  act  of  law ;  for  if  he  comes  in  by 
act  of  law  and  then  holds  over,  he  is  regarded  as  an  intruder,  abator 
or  trespasser.^^*  A  grantor  who  remains  in  possession  without  any  con- 
tract to  that  effect  after  the  delivery  of  the  deed  becomes  a  tenant  at 
sufferance,  and  as  such  is  not  liable  for  rent.  Furthermore,  such  a 
contract  for  continued  occupancy  would  not  be  implied  from  a  simple 
continuance  in  possession  after  the  sale.  The  burden  of  proving  it 
would  bo  on  the  person  setting  it  up.^^^  Non-payment  of  the  purchase 
money  Avould  not  affect  the  result  after  the  property  had  been  con- 
veyed to  a  third  person  who  took  in  reliance  on  the  title  deeds.  After 
conveying  the  legal  title,  the  grantor  was  a  mere  tenant  at  sufferance.^'**^ 
An  employe  occupying  premises  owned  by  his  master  becomes,  on 
holding  over  after  the  termination  of  his  employment,  a  tenant  at 
sufferance.  This  is  the  effect  of  his  continuing  in  possession  even 
though  the  relation  of  landlord  and  tenant  had  not  previously  existed 
between  the  parties.^^'^  In  another  case  an  employer  agreed  to  give  his 
employe  as  part  of  his  wages  a  room  to  live  in,  no  time  being  specified 
during  which  the  relationship  was  to  continue.  The  employe  quitted 
the  service  but  continued  to  occupy  the  premises,  and  the  employer 
evicted  him.  This  the  court  held  he  had  a  right  to  do.  When  of  his 
own  accord  the  employe  left  the  service,  his  right  to  remain  longer  on 

^^Devine  v.  Lord,  175  Mass.  384,  18  N.  W.  569;  Bennett  v.  Robinson, 

56  N.  E.  570.  27  Mich.  26. 

'^*  Johnson  v.  Donaldson,  17  R.  I.  ^  Work  v.  Brayton,  5  Ind.  396. 

107,   20   Atl.   242;    Payton   v.    Sher-  =»^  School      District     No.      11      v. 

hurne,  15  R.  I.  213,  2  Atl.  300.  Batsche,    106    Mich.    330,    64    N.    W. 

'==  Stevens  v.   Hulin,  53  Mich.  93,  196;   People  v.  Annis,  45  Barb.   (N. 

Y.)  304. 


§§  223,  224]  KINDS  OF  tenancy.  264 

the  premises  was  at  an  end;  thenceforth  he  was  there  by  the  mere 
sufferance  of  the  owner.^^^ 

§  223.  A  mortgagor  holding  after  a  sale  of  the  mortgaged  prop- 
erty for  breach  of  condition  is  a  tenant  at  sufferance.  During  sucli 
time  as  the  mortgage  debt  has  to  run,  a  mortgagor  continuing  in  pos- 
session has  been  likened  to  a  tenant  at  will  to  his  mortgagee,  but  with- 
out denying  the  accuracy  of  this  comparison,  all  the  elements  of  a  ten- 
ancy at  sufferance  arise  after  a  breach  of  the  condition  in  the  mort- 
gage.-''^ The  effect  of  holding  over  is  not  modified  by  the  circumstance 
that  the  parties  bear  the  relation  of  mortgagor  and  mortgagee  to  one 
another.  Thus,  where  the  mortgagor  remained  in  possession  for  four 
months  by  agreement  and  held  over  after  the  end  of  the  four  months, 
he  became  tenant  by  sufferance  to  the  mortgagee.  ^'*°  What  is  true  re- 
garding a  mortgagor  applies  with  equal  force  to  those  who  stand  in  his 
shoes.  Therefore,  a  tenant  with  a  lease  junior  to  a  mortgage  becomes  a 
mere  tenant  at  sufferance  upon  a  breach  of  the  condition  in  the  mort- 
gage. This  was  held  in  a  case  where  the  mortgagor  had  conveyed  away 
his  equity  of  redemption  and  taken  back  a  lease  of  the  premises  from 
his  grantee.^"^  It  has  also  been  held  that  a  mortgagor  in  possession 
after  sale,  in  pursuance  of  a  power  in  the  mortgage,  is  a  tenant  by 
sufferance.^'^^  It  seems  to  follow  that  a  mortgagor's  grantee  of  the 
equity  of  redemption  in  possession  is  likewise  a  tenant  by  sufferance, 
if  as  such  grantee  he  enters  before  the  mortgagee's  sale.  At  any  rate, 
the  grantee  would  be  a  tenant  at  sufferance  to  the  original  mortgagor 
after  he  had  purchased  at  the  mortgagee's  sale  and  received  a  convey- 
ance of  the  premises.^"^ 

§  224.  Another  case  in  which  a  tenancy  at  sufferance  arises  with- 
out any  preceding  contract  of  tenancy  is  that  of  a  purchaser  put  in 
possession  before  a  transfer  of  title,  and  the  rule  is  that  a  purchaser 
in  possession  who  makes  default  in  the  payment  of  an  instalment  of 
the  purchase  money  becomes  a  tenant  by  sufferance.^'**  This  applies 
to  a  contract  under  which  the  purchaser  is  given  the  right  to  posses- 

=^^  Eichengreen    v.    Appel,    44    111.  ="- Kinsley     v.     Ames,      2     Mete. 

App.  19.  (Mass.)    29. 

289  Mayo     V.     Fletcher,     14     Pick.  ^"^  Johnson  v.  Donaldson,  17  R.  I. 

(Mass.)     525;    Kinsley   v.    Ames,    2  107,  20  Atl.  242. 

Mete.   (Mass.)  29.  =«  Doe   v.    Lawder,    1    Stark.    246; 

sooMayQ     y      Fletcher,     14     Pick.  Sanders    v.    Richardson,    14    Pick. 

(Mass.)  525.  (Mass.)  522. 

^"iTuttle  v.  Lane,  17  Me.  437. 


265  TENANCY  AT  SUFFERANCE.  [§  225 

sion.  A  breach  of  the  agreement  forfeits  his  right  to  hold  possession 
under  it.  But  where  the  contract  is  silent  in  regard  to  possession,  and 
the  purchaser  is  put  into  possession  without  conditions,  the  retention 
of  possession  is  not  contrary  to  the  conditions  or  covenants  of  the  con- 
tract, because  there  were  none  on  the  subject.  Whatever  rights  existed 
on  the  strength  of  it  depended  on  implications.  That  the  purchaser 
was  a  tenant  at  will  and  entitled  to  three  months'  notice  to  quit  under 
the  statute  was  the  conclusion  reached  by  the  Michigan  court  on  this 
state  of  facts.^"^  But  the  landlord  cannot  by  his  own  default  bring 
about  this  change.  Thus,  a  contract  of  sale  was  made,  the  purchaser 
put  in  possession,  and  it  was  agreed  that  he  should  be  allowed  to  re- 
main in  possession  till  the  day  set  for  the  delivery  of  the  deed.  The 
seller  failed  to  deliver  the  deed,  and  sued  the  purchaser  in  trespass, 
but  it  was  held  that  the  seller  could  not  by  his  own  default  convert  a 
lawful  holding  into  a  trespass.  He  could  not  better  his  position  or  en- 
large his  rights  in  the  premises  by  his  own  violation  of  good  faith.^°^ 
In  another  instance  an  agent  employed  to  care  for  property  put  an 
intending  vendee  into  possession  and  contracted  to  sell  the  premises  to 
him,  subject  to  the  approval  of  the  owner.  The  owner  never  gave  his 
approval,  and  it  was  held  that  as  long  as  the  party  remained  in  posses- 
sion he  was  a  tenant  at  sufferance.^"' 

§  225.  Exception  to  rule. — The  rule  that  one  who  comes  into  pos- 
session of  land  lawfully,  and  holds  after  the  expiration  of  his  right, 
becomes  a  tenant  at  sufEerance,  does  not  apply  to  one  whose  original 
right  of  occupancy  became  vested  in  him  by  operation  of  law.  Thus,  a 
husband  holding  land  which  belongs  to  his  wife  by  virtue  of  his  marital 
rights  becomes  an  adverse  possessor  after  the  death  of  his  wife,  and 
not  a  tenant  at  sufferance.  The  statute  of  limitations  would  run 
against  the  claims  of  the  true  owner.^''*  Lord  Coke,  in  his  commentary 
on  Littleton,  says:  "There  is  a  diversity  between  particular  estates 
created  by  the  tenant  and  particular  estates  created  by  act  of  law ;  as, 
if  a  guardian,  after  the  full  age  of  heire,  continueth  in  possession,  he 
is  no  tenant  at  sufferance,  but  an  abator,  against  whom  an  assize  of 
mort  d'ancestor  doth  lye,  et  sic  de  similibus."^^^  "Where  a  man  comes 

^"^Rawson    v.    Babcock,    40    Mich.  N.  W.  814;   Hanson  v.  Johnson,  62 

330.  Md.    25;    Brown    v.    Smith,    83    111. 

'"'^  Dunham     v.      Townsend,      110  291;    Livingston   v.    Tanner,    14    N. 

Mass.  440.  Y.  64.    See  also,  Jackson  v.  Harsen, 

^"  Smith  v.  Singleton,  71  Ga.  68.  7  Cow.    (N.  Y.)   323. 

'"'Doe  v.  Gregory,  2  A.  &  E.  14;         ^""1  Co.  Lit.  57b. 
Pattison  v.  Dryer,  98  Mich.  564,  57 


§  225]  KINDS  OF  TENANCY.  266 

to  a  particular  estate  by  the  act  of  the  party,  then,  if  he  holds  over,  he 
is  tenant  at  sufferance.  But  where  he  comes  to  the  particular  estate 
by  act  in  law,  as,  if  a  guardian,  after  the  full  age  of  the  heir,  continues 
in  possession,  he  is  not  a  tenant  at  sufferance,  but  an  ahator."^^^  Sub- 
sequent text  writers  on  the  law  of  property  have  commented  on  this 
point,  and  recognized  a  material  distinction  between  the  cases  of  a 
person  coming  to  an  estate  by  act  of  the  party  and  afterwards  holding 
over,  and  one  coming  to  an  estate  by  act  of  the  law  and  then  holding 
over.  Statements  to  this  effect  are  found  in  Kent,  Washburn,  and 
Angell.3" 

In  Ehode  Island  the  law  is  otherwise  on  this  point.  Thus,  in  one 
ease  a  husband  and  wife  occupied  the  husband's  premises  until  the 
husband  deserted  his  wife  and  made  a  conveyance  of  the  premises. 
Before  the  conveyance  the  wife  continued  in  occupation  by  virtue  of 
the  marital  relation.  On  the  conveyance  her  right  to  occupy  as  a  wife 
ceased,  and  she  became  a  tenant  at  sufferance  to  the  grantee.  "Her 
original  entry  under  her  husband  having  been  lawful,  her  possession 
did  not  become  unlawful,  or,  in  other  words,  she  did  not  become  a 
trespasser  until  some  act  on  the  part  of  the  owner  to  terminate  her 
right  to  occupy ."^^^ 

However,  the  common-law  rule  on  this  point  would  lead  to  the 
opposite  conclusion  in  such  a  case.  A  divorced  wife  who  persists  in 
occupying  a  room  in  her  husband's  house  against  his  will  is  a  mere 
intruder,  and  not  a  tenant  at  sufferance.  During  the  pendency  of  the 
divorce  proceedings  the  wife  had  been  allowed  to  occupy  apartments 

^"1  Cruise  Dig.,  tit.  ix,  ch.  2,  §  2.  of  tlie  party  and  afterward  liolding 
^^  Kent's  Comm.  Vol.  IV,  p.  117;  over  and  by  act  of  the  law  and 
Washburn  on  Real  Prop.,  Vol.  I,  p.  their  holding  over.  In  the  first 
393;  Angell  on  Limitations,  §  443.  case,  which  included  an  estate  de- 
In  Livingston  v.  Tanner,  14  N.  Y.  terminable  upon  any  life  or  lives, 
64,  69,  the  court  said:  "In  respect  he  was  regarded  as  a  tenant  at  suf- 
to  the  two  other  cases  mentioned  ferage.  In  the  other,  to  which  be- 
in  the  section — that  of  a  guardian  or  long  guardians  or  trustees  holding 
trustee  holding  for  an  infant  and  for  infants,  and  husbands  seized  in 
a  husband  seized  in  right  of  his  right  of  their  wives  only,  they  were 
wife  only, — neither  of  these  persons  trespassers,  and  the  relation  of 
holding  over  after  the  determina-  landlord  and  tenant  never;  in  any 
tion  of  their  respective  estates  be-  sense,  existed." 

came  tenants  at  sufferance  at  com-  ^^-  Taylor  v.  O'Brien,  19  R.  I.  429, 
mon  law.  They  were  mere  intrud-  34  Atl.  739,  per  Matteson,  C.  J.,  cit- 
ers,  abators  and  trespassers.  At  ing  Kenney  v.  Sweeney,  14  R.  I. 
common  law  there  was  a  material  581;  Payton  v.  Sherburne,  15  R.  I. 
distinction  between  the  cases  of  a  213,  2  Atl.  300;  Johnson  v.  Donald- 
person  coming  to  an  estate  by  act  son,  17  R.  I.  107,  20  Atl.  242. 


i 


267  TENANCY    AT    SUFFERANCE.  [§'   226 

in  her  husband's  house.  "As  a  wife  she  had  undoubtedly  a  right  to  use 
all  the  apartments  in  the  house,  in  virtue  alone  of  the  marriage  rela- 
tion. When  that  ceased  by  the  decree  of  the  court,  her  rights  to  any 
and  all  portions  of  the  house  ceased.  .  .  .  after  the  divorce  her 
rights  terminated.  She  was  not  a  tenant  on  sufferance,  but  an  intruder 
from  and  after  the  day  the  divorce  was  granted."^^^  But  where  a  hus- 
band allowed  his  divorced  wife  to  keep  possession  of  a  farm  for  several 
years,  she  became  his  tenant  at  will.  She  "was  not  a  tenant  at  suffer- 
ance. She  was  no  less,  at  any  rate,  than  a  tenant  at  will.  Whether  or 
not  any  difficulty  existed  in  her  tenure  during  the  marriage,  there 
could  have  been  none  after  the  divorce."^^* 

§  226.  Rights  of  tenant  at  sufferance. — As  has  already  been  pointed 
out,  a  tenant  at  sufferance  is  not  in  reality  a  tenant  at  all.  He  is 
merely  in  a  position  where  the  statute  of  limitations  will  not  run 
against  the  right  of  the  owner  to  recover  possession  of  the  premises. 
It  follows  that  the  duties  of  such  an  occupant  are  limited,  and  his 
rights  and  privileges  are  correspondingly  few.  "The  tenant  at  suffer- 
ance has  merely  a  naked  possession ;  stands  in  no  privity  to  the  land- 
lord; is  not  liable  for  rents,  unless  expressly  made  so  by  statute,  nor 
is  he  entitled  to  notice  to  quit.  The  landlord  may  put  an  end  to  the 
tenancy  when  he  thinks  proper,  and  may,  under  certain  circumstances, 
treat  the  one  in  possession  as  an  intruder  or  trespasser."^  ^^  By  refus- 
ing to  leave  when  ordered  to  do  so,  a  tenant  at  sufferance  becomes  a 
trespasser.  The  lessor,  after  the  term  is  ended,  may  enter  at  pleasure 
and  order  the  lessees  out,  and  if  they  hold  over,  there  is  no  question 
that  it  is  a  trespass.^^**  All  the  books  agree  that  he  retains  the  posses- 
sion as  a  wrong-doer,  just  as  a  disseisor  acquires  and  retains  his  pos- 
session by  wrong.^^^  But  before  being  allowed  reasonable  time  to  leave, 
one  occupying  by  the  sufferance  of  the  true  owner  is  not  guilty  of  a 
trespass.^^^  "If  the  landlord  suffered  the  tenant  to  remain  in  posses- 
sion after  the  expiration  of  the  term,  the  common  law  intervened  by 
requiring  that  the  tenant  should  not  be  subjected  to  an  action  of 
trespass  (though  he  might  be  to  an  action  of  ejectment),  un- 
less an  entry  or  demand  were  first  made,  and  by  declaring  that,  as  the 

'"Brown  v.  Smith,  83  111.  291,  per  307;    Smith  v.  Littlefield,  51  N.  Y. 

Breese,  J.  539. 

'"Wilson  v.  Merrill,  38  Mich.  707.  '^^Danforth  v.   Sargent,   14   Mass. 

"^  McLeran  v.  Benton,  73  Cal.  329,  491. 

14  Pac.  879,  per  Paterson,  J.,  citing  '"2  Bl.  Com.  150. 

Hauxhurst  v.  Lobree,  38   Cal.   563;  "'Pratt     v.     Farrar,      10     Allen 

Meier   v.    Thiemann,    15    Mo.    App.  (Mass.)   519. 


§  227]  KINDS  OF  TEXAXCY.  2G8 

tenant  was  in  possession  under  lawful  title,  the  continuance  in  pos- 
session should  not  be  deemed  unlawful  until  the  landlord,  by  some  act 
like  an  entry,  should  put  the  tenant  in  the  wrong.  This  shadowy  estate 
was  termed  tenancy  at  sufferance,  .  .  .  Practically,  it  differed 
from  the  holding  of  a  trespasser  only  in  this,  that  the  landlord,  by  his 
acquiescence,  could  at  any  time  base  upon  it  the  relation  of  landlord 
and  tenant."  .  .  .^^^  While  it  is  true  that  a  tenant  at  sufferance 
can  hardly  be  called  a  tenant  at  all,  and  that  his  holding  is  without 
right  of  any  kind,  yet  if  a  landlord  permits  him  to  remain,  and  espe- 
cially if  he  receives  rent  of  him,  he  then  becomes  a  tenant  at  will.^^" 

The  nature  of  this  kind  of  holding  was  examined  in  an  inquiry  to 
ascertain  the  liability  of  a  tenant  at  sufEerance  for  the  loss  of  buildings 
by  fire.  Now,  the  only  point  of  difference  between  the  case  of  the  dis- 
seisor and  the  tenant  at  sufferance  is  that  the  owner  cannot  maintain 
an  action  of  trespass  against  his  tenant  by  sufEerance  until  he  has  en- 
tered upon  the  premises.  Upon  this  view,  the  liability  of  the  tenant 
to  answer  for  the  loss  by  fire  is  regulated  not  by  the  rule  applicable  to 
tenants  under  contract  or  holding  by  right,  but  by  that  which  governs 
the  case  of  the  disseisor  and  unqualified  wrong-doer.  A  mere  disseisor 
is  responsible  for  any  damage  which  results  from  any  of  his  wrongful 
acts.  He  has  no  right  to  build  any  fire  upon  the  premises,  and  if  mis- 
fortune results  from  it  he  must  bear  the  loss.  Since,  however,  the  rule 
that  a  tenant  at  sufferance  is  not  liable  in  trespass  is  well  established, 
the  form  of  action  in  which  the  tenant  would  be  liable  would  be  tres- 
pass on  the  case.^^'^ 

A  taking  by  eminent  domain  of  land  which  is  occupied  by  a  tenant 
at  sufferance  does  not  deprive  the  occupier  of  anything  for  which  he 
can  claim  damages.  A  prior  tenancy  had  been  terminated  by  proper 
notice,  but  the  lessee  did  not  vacate  the  premises  on  the  day  specified. 
His  remaining  in  possession  after  that  day  gave  him  no  right  as  a 
tenant.  At  best  such  occupancy  was  by  the  mere  sufferance  of  the 
lessor,  and  conferred  no  kind  of  estate  in  the  land.^-- 

§  227.  The  common  law  gave  no  right  of  action  in  any  case 
against  a  tenant  at  sufferance  to  recover  for  use  and  occupation. ^-^ 

At  common  law,  tenants  at  sufferance  were  not  liable  to  pay  rent 

^"  Semmes    v.    United    States,    14  '-"  Shaaber   v.   Reading   City,    150 

Ct.  CI.  (U.  S.)  493,  501,  per  Nott,  J.  Pa.  St.  402,  24  Atl.  692. 

""Dunning  v.  Finson,  46  Me.  546;  ^-^  Livingston  v.  Tanner,  14  N.  Y. 

Ramsdell  v.  Maxwell,  32  Mich.  285.  64;    Smith   v.    Littlefield,    51    N.   Y. 

"^Russell    v.    Fabyan,    34    N.    H.  539. 
218. 


269 


TENANCY   AT    SUFFERANCE. 


[§   227 


strictly  so  called,  because  it  was  the  folly  of  the  owners  to  allow  them 
to  continue  in  possession  after  the  determination  of  the  preceding 
estate.^-*  In  a  case  before  the  Court  of  Exchequer  a  purchaser  tried 
to  recover  in  use  and  occupation  from  his  grantor,  who  had  remained 
in  occupation  of  part  of  the  premises.  The  court  denied  the  right  of 
recovery  and  nonsuited  the  plaintiff,  on  the  ground  that  there  was  no 
agreement  in  regard  to  the  holding.  Baron  Rolfe  remarked  in  his 
opinion :  "If  a  vendor  remains  in  possession  by  agreement,  the  terms 
of  the  agreement  will  speak  for  themselves ;  if  not,  he  is  a  wrong-doer, 
and  may  be  turned  out  by  ejectment,  and  is  liable  in  trespass  for 
mesne  profits."^'^  So  use  and  occupation  will  not  lie  when  the  holding 
is  not  in  express  subordination  to  the  owner's  title. ^-*^  Where  a  sub- 
tenant renting  from  a  lessee  holds  over  after  the  termination  of  the 
original  lease,  the  landlord  cannot  assent  to  such  holding  over,  for  by 
so  doing  he  would  be  accepting  a  new  tenant,  and  thereby  releasing 
the  original  lessee  from  liability  by  reason  of  such  holding  over.  The 
landlord  can  recover  rent  from  the  original  lessee  for  the  time  the  sub- 
tenant remains  in  occupation.^^^  A  somewhat  similar  situation  arises 
where  a  lease  runs  to  several  and  some  of  them  hold  over  after  the  end 
of  the  term.  Until  the  landlord  agrees  to  accept  those  remaining  in 
possession  as  his  tenants,  he  may  hold  all  liable  to  pay  for  the  use  of 
the  premises  while  the  occupation  continues.^^* 

In  Massachusetts,  tenants  at  sufferance  have  by  statute  been  made 
liable  to  pay  rent  during  such  time  as  they  occupy  the  premises.^^^ 
By  this  statute  a  tenant  at  will  remaining  after  notice  of  a  sale  of  the 
reversion  is  made  liable  to  the  purchaser  for  rent.^^*^   A  tenant  at  will 


^^M   Kent  Comm.    (6th  ed.)    116; 

1  Cruise  Dig.,  tit.  9,  ch.  2,  §  5;  De- 
lano V.  Montague,  4  Cush.  (Mass.) 
42.  Alabama:  Smith  v.  Houston, 
16  Ala.  111.  California:  McLeran 
V.  Benton,  73  Cal.  329,  14  Pac.  879, 

2  Am.  St.  814.  Illinois:  Dixon  v. 
Haley,  16  111.  145.  Maryland:  De 
Young  v.  Buchanan,  10  Gill  &  J.  149, 
32  Am.  Dec.  156.  Massachusetts: 
Emmons  v.  Scudder,  115  Mass.  367; 
Flood  v.  Flood,  1  Allen  217.  Michi- 
gan: Stevens  v.  Hulin,  53  Mich.  93, 
18  N.  W.  569.  New  Jersey:  Con- 
don v.  Barr,  47  N.  J.  Law  113,  54 
Am.  R.  121. 

325  Tg^  V.  Jones,  13  M.  &  W.  12. 
'='«Cripps  v.  Blank,  9  D.  &  R.  480. 


^"Ibbs  V.  Richardson,  9  A.  &  E. 
849. 

'=' Christy  v.  Tancred,  7  M.  &  W. 
127. 

^^''Rev.  Laws  1902,  ch.  129,  §§  3, 
6,  8. 

^^  Bunton  v.  Richardson,  10  Al- 
len (Mass.)  260.  In  Merrill  v. 
Bullock,  105  Mass.  486,  Gray,  J., 
said:  "In  this  Commonwealth,  it 
was  always  held  that  where  the 
tenant  at  sufferance  had  never  oc- 
cupied under  the  plaintiff  or  under 
any  party  in  privity  with  him,  but 
claimed  to  hold  under  an  adverse 
title,  the  action  for  use  and  occu- 
pation could  not  be  maintained,  be- 
cause to  support     such     an     action 


§■  228]  KIXDS   OF   TENANCY.  270 

of  a  mortgagor  of  land  who  continues  in  possession  after  entry  by  the 
mortgagee,  with  knowledge  of  the  entry,  becomes  liable  to  him  for  use 
and  occupation.^^^  A  lessee  may  recover  rent  from  his  tenant  at  suffer- 
ance although  the  written  lease  terminates  during  the  pendency  of  the 
action.^^^ 

But  a  tenant  at  sufferance,  made  such  by  a  conveyance  of  which  he 
had  no  notice  or  knowledge,  is  not  liable  to  an  action  for  rent  under 
the  provisions  of  this  statute.  "It  has  long  been  held  to  be  a  rule, 
founded  on  the  plainest  principles  of  equity  and  fair  dealing,  that 
where  a  right  of  action  depends  on  a  fact  peculiarly  within  the  knowl- 
edge of  the  plaintiff,  and  which  the  other  party  may  not  be  presumed 
to  know,  and  does  not  in  fact  know,  the  plaintiff  must  give  the  de- 
fendant notice  of  such  f act.''^^^ 

§  228.  Right  of  entry  on  tenant  at  sufferance. — The  owner  of  land 
who  forcibly  enters  thereon  and  ejects  without  unnecessary  force  a 
tenant  at  sufferance,  who  has  had  reasonable  notice  to  quit,  is  not  liable 
to  an  action  for  an  assault,  and,  a  fortiori,  he  would  not  be  liable  in  an 
action  of  trespass.  "A  tenant  holding  over  after  the  expiration  of  his 
tenancy  is  a  mere  tenant  at  sufferance,  having  no  right  of  possession 
against  his  landlord.  If  the  landlord  forcibly  enters  and  expels  him, 
the  landlord  may  be  indicted  for  the  forcible  entry.  But  he  is  not  liable 
to  an  actio-n  of  tort  for  damages,  either  for  his  entry  upon  the  prem- 
ises or  for  an  assault  in  expelling  the  tenant,  provided  he  uses  no  more 
force  than  is  necessary.  The  tenant  cannot  maintain  an  action  in  the 
nature  of  trespass  quare  clausum  fregit,  because  the  title  and  the  law- 
ful right  to  the  possession  are  in  the  landlord,  and  the  tenant,  as 
against  him,  has  no  right  of  occupation  whatever.  He  cannot  main- 
tain an  action  in  the  nature  of  trespass  to  his  person  for  a  subsequent 
expulsion  with  no  more  force  than  necessary  to  accomplish  the  purpose, 

there   must   be   evidence   of   a   con-  son,  4  Mete.  224,  228,  that  either  a 

tract    or    undertaking    by    the    de-  tenant  at   will   or  a  tenant  at  suf- 

fendant,    express    or    implied,    and  ferance  occupying  by  permission  of 

because    where    the    defendant    had  the  landlord,  was  liable  to  him  in 

never    admitted    himself    to    be    a  an  action  of  assumpsit  for  use  and 

tenant    and     so     estopped     himself  occupation." 

to  deny  his  landlord's     title,     con-        ^^^  Lucier   v.    Marsales,   133    Mass. 

flicting   titles   to    real    estate   could  454. 

not    be    tried    in    an    action    of   as-        •*^- Casey  v.  King,  98  Mass.  503. 
sumpsit.    .    .    .    But  it  was  assumed         =''  Dixon  v.  Smith,  181  Mass.  218, 

by    Mr.   Justice   Wilde,   in    Keay   v.  63  N-  E.  419,  quoting  from  Furlong 

Goodwin,  16  Mass.  1,  4,  and  by  Chief  v.  Leary,  8  Cush.  (Mass.)  409,  410. 
Justice   Shaw,   in  Gould  v.  Thomp- 


271  TENANCY  AT  SUFFEKANCE.  [§  228 

because  the  landlord,  having  obtained  possession  by  an  act  which, 
though  subject  to  be  punished  by  the  public  as  a  breach  of  the  peace, 
is  not  one  of  which  the  tenant  has  any  right  to  complain,  has,  as 
against  the  tenant,  the  right  of  possession  in  the  premises;  and  the 
landlord,  not  being  liable  to  the  tenant  in  an  action  of  tort  for  the 
principal  act  of  entry  upon  the  land,  cannot  be  liable  to  an  action  for 
the  incidental  act  of  expulsion,  which  the  landlord,  merely  because  of 
the  tenant's  own  unlawful  resistance,  has  been  obliged  to  resort  to  in 
order  to  make  his  entry  effectual.  To  hold  otherwise  would  enable  a 
person  occupying  land  utterly  without  right  to  keep  out  the  lawful 
owner  until  the  end  of  a  suit  by  the  latter  to  recover  the  possession  to 
which  he  is  legally  entitled."^^*  If  the  owner  of  land  held  by  a  tenant 
at  sufferance  enter  and  expel  the  occupant,  but  makes  use  of  no  more 
force  than  is  reasonably  necessary  to  accomplish  this,  he  will  not  be 
liable  to  an  action  of  trespass  quare  clausum,  nor  for  assault  and  bat- 
tery, nor  for  injury  to  the  occupant's  goods,  although  it  becomes  neces- 
sary to  use  such  force  and  violence  as  to  subject  him  to  indictment  for 
a  breach  of  the  peace,  or  under  the  statute  for  making  a  forcible 
entry.^^^ 

Although  it  was  decided  in  an  early  case  in  Massachusetts  that  the 
plea  of  liberum  tenementum  was  not  a  justification  of  a  charge  of  per- 
sonal assault  and  battery,^^**  this  decision,  so  far  as  it  allowed  the 
plaintiff  to  recover  damages  for  the  incidental  injury  to  him  or  to  his 
personal  property,  has  been  overruled. ^^^  However,  a  landowner  has 
no  right  to  enter  by  force  upon  a  tenant  at  will.  The  tenant  might 
stay  till  removed  by  legal  process,  and  in  Maine  it  has  been  held  that 
the  tenant  could  bring  trespass  qiicu-e  clausum  for  such  entry. ^^^ 

Before  entry,  a  landlord  cannot  maintain  an  action  of  trespass 
against  a  tenant  by  sufferance,  as  he  might  against  a  stranger.  Because, 
the  tenant  being  in  by  lawful  title,  the  law  will  presume  him  to  con- 
tinue upon  a  title  equally  lawful  till  the  owner  declare  his  continuance 
to  be  tortious.^^^  But  the  landlord  has  the  right  of  entering  upon  a 
tenant  at  sufferance  at  any  time  without  being  liable  in  an  action  of 

^'*Low  V.   Elwell,   121   Mass.   309,  =''»  Sampson  v.   Henry,     13     Pick, 

per  Gray,  C.  J.;  Jackson  v.  Farmer,  (Mass.)  36. 

9  Wend.    (N.  Y.)    201;   Overdeer  v.  =="  Eames    v.     Prentice,     8     Cush. 

Lewis,  1  Watts  &  S.   (Pa.)   90;  Kel-  (Mass.)   337. 

lam  V.  Janson,     17     Pa.     St.     467;  ==»  Brock  v.  Berry,  31  Me.  293. 

Stearns     v.     Sampson,  59  Me.  568;  ^^^  Uridias  v.  Morrell,  25  Cal.  31; 

Sterling  v.  Warden,  51  N.  H.  217.  Bright    v.     McOuat,     40     Ind.     521; 

===  Manning  v.  Brown,  47  Md.  506,  Keay  v.  Goodwin,  16  Mass.  1;   Kis- 

citing  Washburn  on  Real  Prop.  (3d  ing  v.  Stannard,  17  Mass.  282. 
ed.),  vol.  I,  p.  538. 


§  229]  KINDS  OF  TEXANCT.  272 

trespass  quare  clausum.  The  objection  to  such  an  action  is  that  the 
plaintiff  cannot  allege  that  it  was  his  close  upon  which  the  entry  was 
made.  The  so-called  tenant  holds  possession  wrongfully.  The  owner 
has  a  full  right  of  entry.^**^  Slight  acts  are  sufficient  to  constitute  an 
entry  upon  a  tenant  at  sufferance.  After  the  expiration  of  a  lease  for  a 
definite  time,  the  agent  of  the  lessor  went  on  the  land  and  cut  down 
some  trees  by  the  direction  of  the  lessor.  The  lessee  remained  on  the 
land.  This  was  held  to  be  a  sufficient  resumption  by  the  lessor  to  en- 
able him  to  maintain  trespass.^'*^ 

In  two  jurisdictions,  however,  it  has  been  held  that  a  tenant  by 
sufferance,  upon  whom  a  landlord  has  entered  by  force,  may  maintain 
an  action  of  trespass  quare  clausum  fregit.^*^  In  an  exhaustive  article 
on  the  subject,  these  decisions  are  explained  as  resting  on  a  misappre- 
hension of  the  English  authorities.^*'  However,  many  of  the  statutes 
in  this  country  give  the  tenant  redress  in  case  his  landlord  makes  a 
forcible  entry  upon  him. 

§  229.  The  term  tenant  at  sufferance  is  not  always  used  in  the 
strict  sense  which  it  bore  in  the  old  law.  In  certain  cases,  the  statu- 
tory requirements  for  notice  to  terminate  tenancies  at  will  would  work 
hardship.  To  avoid  this  the  occupant  has  been  called  a  tenant  at  suf- 
ferance. On  the  other  hand,  the  question  whether  a  tenancy  was  one 
at  will  or  by  sufferance  merely,  becomes  immaterial  when  both  are 
required  to  be  terminated  by  the  same  notice.'**  In  regard  to  this 
matter,  Lyon,  chief  justice  of  the  Wisconsin  court,'*^  said:  "The 
doctrine  that  a  tenancy  by  sufferance  necessarily  arises  when  a  man 
comes  into  possession  of  lands  lawfully,  but  holds  over  wrongfully 
after  the  termination  of  his  interest  therein,  has  been  qualified  in  this 
state  and  elsewhere  in  an  important  particular."  In  the  case  to  which 
the  learned  judge  referred,  it  had  been  held  that  consent  to  the  hold- 
ing by  the  landlord  was  necessary  to  create  a  tenancy  at  sufferance.'*^ 
The  opinion  continues :  "It  is  quite  true  that  the  ruling  in  that  case 
narrows  the  distinction  which  has  sometimes  been  supposed  to  exist 
between  tenancies  at  will  and  by  sufferance.    But  since  the  adoption 

^  Moore      v.      Mason,      1      Allen  Page  v.  DePuy,  40  111.  506;   Reeder 

(Mass.)  406;  Curtis  v.  Galvin,  1  Al-  v.  Purdy,  41  111.  279. 

len   (Mass.)   215;   Esty  v.  Baker,  50  "M  Am.  L.  Rev.  429. 

Me.     325;     Wilde    v.     Cantillon,    1  ="  Bennett  v.   Robinson,  27  Mich. 

Johns.  Cas.  (N.  Y.)  123.  26. 

="  Dorrell  v.   Johnson,     17     Pick.  ^"  Eldred  v.  Sherman,  81  Wis.  182, 

(Mass.)    263.  186,  51  N.  W.  441. 

^Dustin  v.  Cowdry,   23  Vt.  631;  ="  Meno   v.    HoefEel,    46    Wis.    282, 

1  N.  W.  31. 


I 


273  TENANCY   AT   SUFFERANCE.  [§'  230 

of  our  statutes  on  the  subject  of  terminating  such  tenancies,  which 
puts  them  on  precisely  the  same  footing,  it  is  not  unjust  or  unreason- 
able thus  to  narrow  the  supposed  distinction  between  them ;  and  were 
it  entirely  abolished,  the  result  would  be,  at  most,  the  abolition  of  a 
mere  technicality  of  the  old  law,  for  the  retention  of  which  no  good 
reason  can  be  given."  Thus,  because  of  a  statute  declaring  that  all 
general  tenancies  should  be  estates  from  year  to  year,  it  was  held  that 
mere  permission  to  use  land,  without  any  provision  for  rent,  could  at 
most  amount  to  a  tenancy  at  sufferance,  if  indeed  it  could  amount  to 
that.^*^  In  a  case  where  one  occupying  land  rent  free  for  an  indefinite 
term  by  consent  of  the  owner  was  called  a  tenant  by  sufferance,  the 
point  at  issue  was  whether  the  land  could  be  charged  with  a  mechanic's 
lien  for  building  materials.  To  decide  that  it  could  not  be  so  charged, 
it  was  only  necessary  to  hold  that  the  tenant  had  no  transferable  in- 
terest, and  the  holding  might  have  been  a  tenancy  at  will  as  well  as 
one  by  sufferance. ^^^  The  same  criticism  could  be  made  in  a  case  where 
the  holder  of  a  leasehold  estate  put  a  person  into  possession  under  a 
promise  to  give  him  the  land,  and  the  court  said  the  occupant  was  a 
tenant  at  sufferance.  The  decision  of  the  case  did  not  depend  on  the 
nature  of  the  tenancy.^*^ 

At  common  law  the  purchaser  of  a  life  estate  becomes  a  tenant  at 
sufferance  after  death  of  life  tenant,  but  by  the  New  York  statute  he 
becomes  a  trespasser  and  is  not  entitled  to  notice  to  quit.^^*' 

§  230.  Use  of  term  in  statutes. — As  has  already  been  seen  the  pe- 
culiar nature  of  this  form  of  tenure  is  that  it  confers  no  rights  and 
arises  without  consent;  the  occupier  simply  is  not  a  trespasser;  he 
holds  in  subordination  to  the  title  of  the  true  owner.  As  soon  as  an 
attempt  is  made  to  give  the  tenant  at  sufferance  rights  to  notice,  diffi- 
culties arise  as  to  the  construction  of  the  term.  Thus,  under  a  statute 
providing  that  whenever  there  was  a  tenancy  at  will  or  by  sufferance, 
created  in  any  manner,  it  could  be  terminated  only  on  one  month's 
notice,  the  tenant  could  not  by  the  mere  fact  of  holding  over  and  re- 
fusing to  surrender  possession  create  a  tenancy  either  at  will  or  suf- 
ferance in  himself  without  the  consent  of  his  landlord.  The  term  ten- 
ancy at  sufferance  as  used  in  the  statute  was  not  given  the  meaning  it 
had  at  common  law.^^^   Taylor,  J.,  speaking  for  the  Wisconsin  court, 

^'Cargar  v.  Fee,  140  Ind.  572,  39  ^Livingston  v.  Tanner,  14  N.  Y. 

N.  E.  93.  64. 

''''  Proctor  V.  Tows,  115  111.  138,  3  ^^  Smith   v.   Littlefield,    51    N.   Y. 

N.  E.  569.  539;   Rowan  v.  Lytle,  11  Wend.   (N. 

=^°  Kaufman   v.   Cook,  114   111.   11,  Y.)    616;    Meno  v.  Hoeffel,  46  Wis. 

28  N.  E.  378.  282,  1  N.  W.  31. 
Jones  L.  &  T.— 18 


§  230]  KINDS  OF  TENANCY.  274 

said :  "If  the  tenant,  by  simply  holding  over  after  the  expiration  of 
his  term,  becomes  a  tenant  at  sufferance,  requiring  the  thirty  days' 
notice  to  quit,  and  the  notice  be  given  and  the  landlord  delayed  in  the 
commencement  of  his  proceedings  for  a  day  after  the  thirty  days  ex- 
pired, a  tenancy  at  sufference  would,  according  to  the  claim  of  the 
learned  counsel,  again  exist  in  favor  of  the  tenant,  which  must  again, 
be  terminated  by  another  thirty  days'  notice,  and  so  ad  infinitum.  The 
injustice,  if  not  absurdity,  of  this  claim  on  behalf  of  the  tenant  .  .  . 
is  fully  demonstrated.    .    .    ."^" 

In  Michigan,  on  the  contrary,  the  term  tenancy  at  sufferance,  when 
used  in  a  statute  in  regard  to  notice  to  quit,  was  interpreted  in  its  old 
common-law  sense.  "The  statute  says  nothing  of  privity  between  the 
parties,  and  certainly  none  can  be  required  by  implication  in  the  case 
of  a  tenancy  at  sufferance ;  since  there  never  was  any  privity,  either  of 
contract  or  estate,  in  this  kind  of  tenancy,  and  to  require  it  would  be 
to  take  this  species  of  tenancy  out  of  the  statutes."^^^ 

In  Massachusetts  an  early  statute  required  a  three  months'  notice 
to  terminate  a  tenancy  by  sufferance,  but  a  subsequent  revision,  which 
provided  "that  estates  at  will  may  be  determined  by  three  months' 
notice,  designedly  omitted  tenancies  at  sufferance,  because,  as  the  com- 
missioners say  in  their  note  to  this  section,  so  long  as  the  party  con- 
tinues to  be  a  mere  tenant  at  sufferance  his  estate  is,  and  ought  to  be, 
determinable  at  any  moment  at  the  pleasure  of  the  landlord."^^* 

The  Ehode  Island  court  reached  a  similar  conclusion  in  regard  to  a 
statute  requiring  a  notice  to  terminate  a  tenancy  at  sufferance,  and 
held  that  the  expression  was  used  in  its  technical  sense.  Durfee,  C.  J., 
comments  on  the  New  York  cases  as  follows:  "We  are  aware  that 
there  are  cases  in  ^N'ew  York  that  refuse  to  give  to  the  words  'tenant  at 
sufferance,'  used  in  a  N'ew  York  statute  similar  to  ours,  their  strict 
technical  meaning,  and  hold  that  a  person  who,  having  come  in  by 

===Meno  v.  Hoeffel,  46  Wis.  282,  1  tional  relation  of  landlord  and  ten- 

N.  W.  31.  ant   exists,   and   applies,   so   far   as 

^=«  Bennett  v.  Robinson,  27   Mich,  tenancies    by    sufferance    are    con- 

26.     The  Michigan  court  comments  cerned,  only  to  that  particular  class 

on  the  New  York  cases  as  follows:  of  them  which  arises  from  holding 

"The   New  York  statutes   are   very  over  after  the  expiration  of  a  lease 

different  from    our   own   in   respect  or  term,  and   (by  special  provision) 

to    the    tenancies    by    sufferance    to  to  lands  sold  on  execution,"  citing 

which  these  special  proceedings  are  Sims  v.  Humphrey,  4  Denio.  (N.  Y.) 

made    applicable.      The    proceeding  185. 

is  there  confined  to  those  classes  of  '^  Kinsley     v.     Ames,     2     Mete, 

cases  where  tenancies  by  sufferance  (Mass.)   29,  31,  per  Shaw,  J. 
or  otherwise,  in  which  the  conven- 


II 


275  STATUTOBY  PKOVISIONS.  [§§   231,   232 

right,  holds  over  after  the  expiration  of  his  estate  is  not  a  tenant  at 
sufferance  so  as  to  be  entitled  to  notice  to  quit  under  said  New  York 
statute,  until  he  has  held  over  so  long  or  under  such  circumstances  as 
evince  assent  thereto  on  the  owner's  part.  The  trouble  with  these  cases 
is  they  ignore  the  difference  between  a  tenancy  by  sufferance  and  a 
tenancy  at  will,  since  a  person  who  so  occupies  with  the  owner's  con- 
sent is  technically  a  tenant  at  will."^^^ 

VI.    Statutory  Provisions. 

§  231.  California. — "In  all  cases  of  tenancy  upon  agricultural 
lands,  where  the  tenant  has  h,eld  over  and  retained  possession  for  more 
than  sixty  days  after  the  expiration  of  his  term,  without  any  demand 
of  possession  or  notice  to  quit  by  the  landlord,  he  shall  be  deemed  to 
be  holding  by  the  permission  of  the  landlord,  and  shall  be  entitled  to 
hold,  under  the  terms  of  the  lease,  for  another  full  year ;  .  .  .  and 
such  holding  over  for  the  period  aforesaid  shall  be  taken  and  construed 
as  a  consent,  on  the  part  of  the  tenant,  to  hold  for  another  year."^^*' 

§  232.  Connecticut. — "No  holding  over  by  any  lessee,  after  the 
expiration  of  the  term  of  his  lease,  shall  be  evidence  of  any  agreement 
for  a  further  lease ;  and  parol  leases  of  lands  or  tenements  reserving  a 
monthly  rent,  and  in  which  the  time  of  their  termination  is  not  agreed 
upon,  shall  be  construed  to  be  leases  for  one  month  only."^^^  Before 
this  statute,  a  tenant  under  a  lease  for  one  year  holding  over  was  re- 
sponsible for  another  term  on  the  same  conditions.^^*  Under  this 
statute,  mere  holding  over  is  no  evidence  of  a  new  lease,  and  the  court 
correctly  charged  the  jury  that  they  must  be  satisfied  from  other  evi- 
dence, showing  a  meeting  of  the  minds  of  the  parties,  before  they  could 
find  a  new  lease  for  another  year.^^^  This  act  does  not,  however,  do 
away  with  tenancies  from  month  to  month. ^'''*  To  constitute  such  a 
tenancy  under  this  section,  three  things  are  requisite :  a  parol  lease,  a 
monthly  rent,  and  no  agreed  time  for  the  termination  of  the  lease.^^^ 
The  effect  of  this  statute  is  not  to  do  away  with  year  to  year  tenancies 

'"Johnson  v.  Donaldson,  17  R.  I.  ^=°  Miller  v.  Lampson,     66     Conn. 

107,  108,   20  Atl.   242,  citing  Moore  432,  34  Atl.  79. 

V.   Morrow,   28    Cal.   551,    554;    and  =«"  Corbett  v.   Cochrane,   67   Conn. 

Allen  V.  Carpenter,  15  Mich.  25.  570,  35  Atl.  509;  Miller  v.  Lampson, 

^'^''Code   Civil   Procedure,    §  1161.  66  Conn.  432,  34  Atl.  79. 

="  General  St.  1902,  §  4043.  =="'  Corbett  v.   Cochrane,   67   Conn. 

'^  Bacon   v.   Brown,   9   Conn.    335,  570,  35  Atl.  509. 


§§■  233,  234]  KINDS  OF  tenancy.  276 

entirely.  Where  a  lessee  took  possession  under  a  parol  lease  for  three 
years,  it  created  a  tenancy  at  will  which  by  implication  was  held  to  be 
a  tenancy  from  year  to  year,  and  the  terms  of  the  special  contract 
would  govern  the  rights  of  the  parties.^*^-  Under  the  second  clause  in 
the  statute,  a  lease  by  parol  reserving  a  monthly  rent  does  not  neces- 
sarily become  a  lease  from  month  to  month.  Such  is  not  the  statute. 
To  be  a  lease  for  a  month  only,  three  things  must  concur:  the  lease 
must  be  by  parol,  a  monthly  rent  reserved,  and  the  time  of  termination 
must  not  be  agreed  upon.  A  lease  running  for  a  fixed  time  could  not 
well  be  considered  one  which  had  no  agreed  time  of  termination 
within  the  fair  intent  and  meaning  of  the  statute.  A  parol  lease  for 
a  certain  number  of  years  creates  a  tenancy  at  will,  which  by  impli- 
cation is  held  to  be  a  tenancy  from  year  to  year.^®^ 

§  233.  District  of  Columbia. — "A  tenancy  at  will  must  be  created 
by  express  contract  and  occupation;  possession  and  holding  of  any 
messuage  or  real  estate  without  such  express  contract  or  lease,  or  by 
such  contract  or  lease  which  has  expired,  shall  be  tenancies  by  suffer- 
ance." "Tenancies  at  will  may  be  terminated  by  thirty  days'  written 
notice  to  quit.  .  .  ."^^^  The  original  act  upon  which  these  sections 
are  based  was  passed  in  1864,  and  received  judicial  interpretation  soon 
after  its  passage.  The  effect  of  the  act  seems  to  have  been  to  abolish 
the  doctrine  of  year  to  year  tenancy  which  had  previously  been  the 
law.  Mere  wrongful  holding  over  did  not  create  a  tenancy  at  suffer- 
ance or  entitle  the  tenant  so  holding  over  to  any  notice  to  quit.  A 
holding  over  by  implied  consent  of  the  landlord  made  the  tenant  a 
tenant  at  sufferance.^^^ 

§  234.  In  Delaware  it  is  provided  by  statute  that  "where  no  term 
is  expressly  limited,  a  demise  shall  be  construed  to  be  for  a  year,  ex- 
cept of  houses  and  lots  usually  let  for  a  less  time."^®^  Under  this 
statute  a  letting  without  any  lease  or  agreement  in  writing  of  prem- 
ises for  fifty  dollars  a  year  for  the  purpose  of  erecting  a  distillery  upon 
them  by  the  lessee  was  held  to  constitute  a  renting  for  a  year.^®^  The 
tenant  is  liable  for  a  year's  rent  by  force  of  the  statute,  even  though, 
he  remains  in  possession  only  part  of  the  year.   In  the  action  for  use 

^'=Corbett  v.   Cochrane,   67   Conn.         ^^  Spalding  v.  Hall,  6  D,  C.  123. 
570,  citing  Larkin     v.     Avery,     23         '"  Laws  of  Delaware  1893,  ch.  120, 

Conn.  304.  §  2. 

^  Corbett  v.   Cochrane,   67   Conn.         ^^  Humphries  v.   Smith,  4  Houst, 

570,  35  Atl.  509.  (Del.)  9. 

^^Rev.  Stat,   §§   680,   681, 


Jl 


277  STATUTORY   PROVISIONS.  [§§   235,   236 

and  occupation,  the  plaintiff  may  recover  for  the  whole  year,  if  there 
be  a  contract  or  agreement  of  tenancy  either  for  a  year  or  for  no  cer- 
tain time,  although  the  tenant  may  not  have  occupied  for  all  the  year. 
The  Delaware  acl  was  only  in  confirmation  of  the  Stat.  11,  Geo.  2,  ch. 
19.  Even  before  it  was  re-enacted,  that  statute  was,  by  usage  and  con- 
sent, a  part  of  the  common  law  of  the  state.  Under  it,  if  a  contract  of 
tenancy  be  proved,  the  defendant  is  liable  in  use  and  occupation  though 
he  may  never  have  entered  into  possession.^^^ 

§  235.  Georgia. — "Where  no  time  is  specified  for  the  termination 
of  a  tenancy,  the  law  construes  it  to  be  for  the  calendar  year,  but  if  it 
is  expressly  a  tenancy  at  will,  then  either  party  may  terminate  it  at 
will."^^*'  A  landlord  may  treat  a  tenant  from  year  to  year,  who  con- 
tinues to  occupy  a  part  of  the  premises  after  the  end  of  the  term,  as  a 
tenant  for  the  ensuing  year.  And  this,  too,  although  the  tenant  has 
given  proper  notice  to  end  the  year  to  year  holding,  and  has  attempted 
to  surrender  the  keys  to  the  landlord. ^'^^ 

§  236.  In  Indiana  it  is  provided  by  statute  that  an  estate  at  will 
can  only  be  created  by  express  agreement.  The  same  act  provides  that 
any  holding  of  real  estate  for  an  indefinite  term  and  without  a  valid 
written  lease  shall  be  construed  to  be  a  periodic  tenancy.^ ^^  A  state- 
ment in  a  pleading  that  a  person  took  possession  by  consent  of  a  land- 
owner for  an  indefinite  time  is  an  allegation  of  a  general  tenancy,  and 
general  tenancies  are  deemed  to  be  tenancies  from  year  to  year.  A 
parol  lease  for  an  indefinite  period  is,  with  reference  to  its  extent,  a 
lease  for  a  year  certain  and  no  more.^"  The  effect  of  this  is  to  increase 
the  limits  of  year  to  year  tenancies  and  restrict  those  of  month  to 
month  periods.  An  indefinite  letting  at  a  monthly  rent  creates  a  "gen- 
eral tenancy,"  which  by  force  of  the  statute  becomes  a  tenancy  from 
year  to  3'ear.^^*  So,  where  a  void  lease  provided  for  payment  of  rent 
in  advance,  it  was  held  that  occupation  by  tJie  lessee  rendered  the  ten- 
ancy a  valid  year  to  year  holding,  and  that  rent  could  be  collected  by 
suit  before  the  end  of  the  first  years  holding.  It  is  not  necessary  that 
there  should  be  a  reservation  and  payment  of  an  annual  rent  in  order 

=«"'  Lofland     v.     Emory,     2  Harr.         '"  Swan  v.  Clark,  80  Ind.  57,  cit- 

(Del.)    297.  ing  2  R.   S.  1876,   §   2;    Burbank  v. 

^■''Code  1895,  Vol.  II,  §  3132.  Dyer,  54  Ind.  392;  Ross  v.  Schneider, 

="Cavanaiigh  v.  Clinch,     88     Ga.     30  Ind.  423;  Schmitz  v.  Lauferty,  29 

610,  15  S.  E.  673.  Ind.  400. 

'"=  Burns'     Ann.     Ind.     St.  1901,        '"Rothschild     v.     Williamson,  83 

§  7089.  Ind.  387. 


§    237]  KINDS    OF    TEXAXCY.  278 

to  raise  the  presumption  of  an  implied  agreement  between  the  par- 
ties.^'^  Under  the  statute  in  this  state,  a  tenancy  in  which  the  prem- 
ises are  occupied  by  the  assent  of  the  landlord  without  any  written  or 
definite  verbal  agreement,  the  tenant  paying  the  taxes  and  such  other 
rent  as  the  landlord  requires,  is  a  tenancy  from  year  to  year,^^®  But 
it  seems  that  if  the  tenant  holds  over  after  a  definite  term  for  a  year, 
that  implies  a  renewal  of  the  agreement,  and  the  holding  would  come 
to  an  end  on  the  expiration  of  the  second  year  without  notice.  How- 
ever, an  express  agreement  between  the  parties  that  the  tenant  should 
stay  as  long  as  they  agreed,  and  give  up  possession  whenever  the  land- 
lord wanted  it,  excludes  the  application  of  such  a  doctrine,  and  makes 
the  holding  either  a  tenancy  from  year  to  year  or  a  tenancy  at  will. 
In  either  case  a  notice  to  quit  was  necessary;  and  until  the  proper 
notice  had  been  given,  there  was  and  could  be  no  tenancy  by  suffer- 
ance.^^^ 

§  237.  In  Iowa  it  is  provided  that  "any  person  in  the  possession 
of  real  estate  with  the  assent  of  the  owner  is  presumed  to  be  a  tenant 
at  will  until  the  contrary  is  shown."^^*  By  force  of  this  statute,  a 
lessee  for  a  term  of  two  years  with  monthly  rent  payments  holding 
over  becomes  a  tenant  at  will  rather  than  a  tenant  from  year  to  year.^' ^ 
The  presumption  obtaining  at  common  law  that  a  party  holding  over 
after  the  expiration  of  his  lease  becomes  a  tenant  from  year  to  year  is 
overcome  by  this  statutory  provision  making  him  a  tenant  at  will.^*** 
One  in  possession  with  the  assent  of  the  owner,  in  the  absence  of  fur- 
ther proof,  is  presumed  to  be  a  tenant  at  will.^*^  The  common-law 
rule  that  when  a  tenant  for  years  holds  over  after  the  termination  of 
his  lease,  with  the  assent  of  his  landlord,  and  pays  rent  according  to 
the  terms  of  his  lease,  a  tenancy  from  year  to  year  is  established,  is 
changed  by  this  section  of  the  code.  At  most  it  may  be  said  that  there 
is  a  presumption,  which  obtains  at  common  law,  that  by  reason  of 
these  acts  and  this  conduct  of  the  parties  such  a  tenancy  exists.  But 
this  is  overcome  by  the  statutory  presumption,  and  to  overcome  the 
statutory  presumption  an  agreement  or  contract  is  necessary.  In 
commenting  on  the  statutory  provisions,  the  Supreme  Court  of  the 
state  explained  that  the  rules  about  year  to  year  tenancies  "were  devel- 

="=  Nash  V.  Berkmeir,  83  Ind.  536.  ^  O'Brien  v.  Troxel,  76  Iowa  760, 

"'Ross  V.  Schneider,  30  Ind.  423.  40  N.  W.  704;   German  State  Bank 

^"  Coomler  v.  Hefner,  86  Ind.  108.  v.   Herron,   111   Iowa  25,   82   N.   W. 

'"  Iowa  Code,  §§  2014,  2991.  430. 

"°  O'Brien  v.  Troxel,  76  Iowa  760,  ^"  Fischer   v.    Johnson,    106    Iowa 

40  N.  W.  704.  181,  76  N.  W.  658. 


279  STATUTORY  PROVISIONS.  [§'  338 

oped  when  agriculture  was  the  main  pursuit,  and  before  other  interests 
had  assumed  their  present  importance.  While  the  statute  still  protects 
those  in  possession  of  land  for  the  purposes  of  cultivation,  it  also 
affords  protection  to  the  owners  and  tenants  of  other  property."^  ®^ 
The  protection  referred  to  is  the  statutory  provision  that  "in  case  of 
tenants  occupying  and  cultivating  farms,  the  notice  must  fix  the  ter- 
mination of  the  tenancy  on  the  first  of  March."^^^ 

A  person  in  possession  not  recognizing  the  owner  as  landlord  cannot 
be  regarded  as  a  tenant  at  will.^^* 

§  238.  In  Kentucky  it  is  provided  that  a  tenant  for  a  fixed  term 
of  a  year  or  more,  to  expire  on  a  certain  day,  shall  abandon  the  prem- 
ises on  that  day,  unless  by  express  contract  he  secures  the  right  to 
remain  longer.  If  without  such  contract  the  tenant  holds  over,  he  does 
not  acquire  any  rights  for  ninety  days,  and  may  be  expelled  without 
notice.  After  the  lapse  of  ninety  days  without  the  institution  of  pro- 
ceedings, the  tenant  acquires  a  right  to  remain  a  year,  and  is  under  an 
obligation  to  do  so.  At  the  end  of  such  a  year  of  holding,  the  condi- 
tions as  to  holding  over  are  the  same.  In  case  the  original  term  was 
for  less  than  a  year,  the  periods  are  shortened  from  ninety  to  thirty 
days  and  from  a  year  to  sixty  days.^^^  It  was  maintained  that  this  sec- 
tion of  the  statute  gave  the  landlord,  when  the  tenant  held  over,  the 
period  of  ninety  days  in  which  to  determine  whether  he  would  regard 
the  tenancy  as  continuing  for  another  year  or  term,  and,  the  deter- 
mination of  this  question  being  alone  with  him,  he  could  eject  the 
tenant  without  notice  at  any  time  within  the  ninety  days,  or  compel 
him  to  retain  the  possession.  But  the  court  held  that  such  was  not  a 
proper  construction  of  the  statute.  The  section  is  for  the  protection  of 
both  landlord  and  tenant.  The  tenant  may  abandon  the  premises 
within  the  ninety  days  next  succeeding  the  expiration  of  the  term,  and 
is  not  liable  for  a  longer  period  than  he  holds.  He  is  a  tenant  by  suf- 
ferance for  ninety  days,  and  may  be  evicted  without  notice  if  action 
is  taken  within  that  time.  If  permitted  to  remain  longer  than  the 
ninety  days,  his  tenancy  is  regulated  by  the  original  contract.^^*^ 
Neither  the  mere  belief  on  the  part  of  the  tenant  that  he  is  to  continue 
nor  the  implied  understanding  alone  is  sufficient  to  defeat  the  land- 
lord's rights.   If,  however,  the  landlord,  without  objection,  permits  the 

'«=  German  State  Bank  v.  Herron,  ^'^  Ky.   St.    1899,   §    2295;    Ky.    St. 

Ill  Iowa  25,  82  N.  W.  430.  1903,  §§  2295,  2296.                    , 

'^'Code,  §  2991.  -  '^Mendel  v.  Hall,  13  Bush   (Ky.) 

''' Martin  v.  Knapp,  57  Iowa  336,  232. 
10  N.  W.  721. 


§§  239,  240]  KINDS  OF  TEXAXCY.  280 

tenant  to  make  arrangements  to  retain  possession  for  another  year, 
and  to  make  expenditures  under  the  belief  that  he  is  to  remain,  that 
belief  being  induced  by  the  conduct  of  the  landlord,  the  right  of  the 
landlord  to  adopt  the  remedy  provided  by  the  statute  will  be  denied 
him.^^^  An  actual  agreement  for  a  further  yearly  term  may  be  in- 
ferred from  a  shorter  period  of  holding  over.  This  was  done  where 
rent  was  payable  monthly  and  the  agreement  was  that  when  the  lessee 
started  out  on  one  year  he  became  a  renter  for  that  year.^** 

§  239.  In  Maine  it  is  provided  that  "there  can  be  no  estate  created 
in  lands  greater  than  a  tenancy  at  will,  and  no  estate  in  them  can  be 
granted,  assigned  or  surrendered  unless  by  some  writing  signed  by  the 
grantor  or  maker,  or  his  attorney."^^*^  The  effect  of  this  section  must 
be  regarded  as  reducing  what  would  otherwise  be  a  tenancy  from  year 
to  year  to  a  tenancy  at  will.  In  this  respect  the  local  law  follows  the 
law  of  Massachusetts,  and  for  a  lessee  to  hold  over  two  years  after  the 
expiration  of  his  term  would  constitute  him  a  tenant  at  will  only.^^° 
A  verbal  lease  of  real  estate  at  an  annual  rent  creates  under  this 
statute  only  an  estate  at  will.  It  results,  as  incident  to  an  estate  at 
will,  that  it  may  be  determined  at  the  will  of  either  party ;  neither  is 
required  to  give  notice.^^^  A  lessee  under  a  written  lease  who  holds 
over  might,  however,  be  clothed  with  greater  rights  by  special  stipula- 
tions in  the  lease.  So,  where  one  held  under  a  former  lease  that  gave 
liim  the  right  to  perpetual  possession  until  certain  conditions  relating 
to  the  purchase  of  the  property  should  be  complied  with,  the  terms  of 
the  new  lease  would  not  be  construed  as  an  abandonment  or  waiver  of 
his  antecedent  rights.  The  very  terms  of  the  original  lease  implied  a 
continued  tenancy  until  the  tenant  shall  be  repaid  his  authorized  out- 
lay whereby  an  idle  site  was  converted  into  valuable  property.^^^ 

§  240.  In  Massachusetts  there  has  never  been  any  recognition  of 
periodic  tenancies.  In  the  early  case  settling  this  rule,^''^  it  was  said 
that  the  year  to  year  holding  originated  before  the  statute  of  frauds. 
Its  continuance  after  the  passage  of  that  act  was  made  possible  by  the 
exception  in  favor  of  short  term  parol  leases  in  the  English  statute  of 

^'Irvine  v.   Scott,   85   Ky.   260,   3  ^'^  Withers    v.    Larrabee,    48    Me. 

S.  W.  163.  570;  Davis  v.  Thompson,  13  Me.  209. 

^^  linger  v.  Bamberger,  85  Ky.  11,  ^^-  Franklin  Land  &c.  Co.  v.  Card, 

2  S.  W.  498.  84  Me.  528,  24  Atl.  960. 

^'^'Rev.  St.,  ch.  75,  §  13.  =^^  Ellis  v.  Paige,  1  Pick.   (Mass.) 

"^Bennock  v.   Whipple,     12     Me.  43. 
346;  Wheeler  v.  Cowan,  25  Me.  283. 


281  STATUTORY    PROVISIONS.  [§'   2-il 

frauds.  The  omission  of  this  exception  in  the  Massachusetts  act 
showed  clearly  the  intention  of  the  legislature  to  place  all  parol  leases 
on  the  same  footing.  At  first  a  lease  without  limitation  of  time,  and 
with  the  limitation  of  an  annual  rent,  was  considered  as  a  lease  for  a 
year  certain.  Then  followed  tenancies  from  year  to  year  which  could 
not  be  determined  without  six  months'  notice  to  quit.  Wilde,  J.,  con- 
tinued to  trace  the  history  of  the  doctrine  as  follows :  "Thus  stood  the 
law  at  the  time  the  English  statute  of  frauds  was  penned,  and  the 
exception  was  introduced,  no  doubt,  for  the  purpose  of  supporting 
short  parol  leases  and  tenancies  from  year  to  year  depending  on  im- 
plied contracts.  But  whether  this  be  so  or  not,  it  is  very  clear  that  the 
English  doctrine  respecting  tenancies  from  year  to  year  can  only  be 
supported  by  the  exception  in  the  statute,  and  that  by  our  statute 
there  can  be  no  tenancy  from  year  to  year  unless  by  a  lease  in  writing." 
Even  where  the  different  wording  of  the  statute  does  not  have  a  direct 
bearing  on  the  result,  no  tenancy  from  year  to  year  would  be  recog- 
nized in  Massachusetts.  Thus,  a  written  lease  of  a  house  at  a  certain 
rent  per  annum,  payable  monthly,  was  to  begin  upon  the  completion 
of  a  house.  Its  term  was  undefined  except  by  a  stipulation  that  lessor 
could  repossess  himself  of  part  of  it  after  two  years  if  he  wished. 
This  was  held  to  create  a  tenancy  at  will  merely.  Although  there  was 
a  valid  lease  for  an  indefinite  period,  the  presumption  that  the  parties 
intended  a  holding  from  year  to  year  was  not  implied.  The  duration 
of  a  lease  for  years  must  be  certain ;  this  includes  both  its  commence- 
ment and  termination.  It  may  be  conceded  that  a  lease  for  years  may 
begin  "when  a  house  is  suitable  to  be  occupied,"  according  to  the 
mixim,  Id  cerium  est  quod  cerium  reddi  potest.  But  the  fatal  objec- 
tion remains  in  this  case  that  no  period  of  termination  is  fixed.  A 
leasehold  interest  for  an  uncertain  and  indefinite  term  is  an  estate  at 
will  only.  After  the  lessee  had  entered  under  this  instrument,  he  could 
terminate  his  tenancy  in  any  of  the  modes  provided  by  statute.^^^ 

§  241.  In  Michigan  the  doctrine  seems  to  be  that  a  tenant  occupy- 
ing under  a  parol  lease  for  a  number  of  years  is  during  the  term  a 
tenant  from  year  to  year,  because  a  written  instrument  is  necessary  to 
create  a  valid  term  for  years.  But  after  the  expiration  of  the  term  the 
lease  is  functus  officio,  and  cannot  be  treated  as  a  void  lease.  If  the 
rent  was  payable  monthly,  the  contract  of  leasing  could  not  be  treated, 
after  the  expiration  of  five  years,  in  any  other  manner  than  as  a  ten- 
ancy or  lease  from  month  to  month.^'''^     The  apparent  reason  for  this 

'^Murray  v.  Cherrington,  99  '"=  Barium  v.  Berger,  125  Mich. 
Mass.  229.  504,  84  N.  W.  1070. 


§  242]  KINDS  OF  TENANCY.  282 

is  because  the  act  regarding  notice  to  quit  provides  that  the  time  of 
such  notice  shall  be  sufficient  if  it  be  equal  to  the  interval  between  the 
times  for  payment  of  rent.^''® 

§  242.  In  Missouri  the  line  between  month  to  month  and  year  to 
year  tenancies  has  been  defined  by  statute.^^'^  The  Court  of  Appeals 
thought  this  statute  did  not  apply  where  buildings  are  not  let  eo 
nomine,  and  it  did  not  appear  that  they  were  the  essential  object  of  the 
letting,  even  though  the  premises  were  within  the  limits  of  a  town. 
They  argued  that  "it  is  a  notorious  fact  that  most  farms  have  buildings 
upon  them,  and  a  fact  no  less  notorious  that  many  farms  are  situated 
within  the  limits  of  this  city,  and  probably  within  the  limits  of  many 
towns  and  villages  in  this  state.  To  interpret  the  law  to  make  the 
tenure  of  such  farms,  where  a  yearly  tenant  holds  over,  one  from  month 
to  month  would  be  neither  within  the  spirit  nor  the  letter  of  the 
law."^^^  The  leased  property  in  this  case  was  a  park  or  ornamental 
estate  not  used  for  agricultural  purposes.  On  appeal  the  decision  of  the 
court  below  was  reversed  by  the  Supreme  Court.  The  grounds  for 
this  conclusion  were  stated  to  be  that  "the  statute  makes  no  exception, 
and  we  are  authorized  to  make  none ;  we  shall  obey  its  commands.  We 
do  not  propose  by  fine-spun  distinctions  to  sanction  the  creation  of 
leases  which  that  statute  in  such  plain  terms  forbids.  Should  we  do 
so  we  would  be  but  following  that  unfortunate  precedent  set  by  the 
English  courts  whereby  they  frittered  away  the  wholesome  provisions 
of  the  statute  of  frauds  and  allowed  parol  agreements  and  part  per- 
formance for  that  which  the  law  said  should  be  put  down  in  black  and 
white."  The  court  expressly  reserves  its  opinion  as  to  a  case  where 
land  within  the  limits  of  a  town  or  city  was  used  for  farming  pur- 
poses.^^^  Before  the  decision  in  the  park  case  had  been  reversed  on 
appeal,  the  lower  court  commented  favorably  upon  its  interpretation 
of  the  statute  and  decided  a  case  in  reliance  on  it.  Where  the  build- 
ings on  the  demised  premises  were  erected  by  the  lessee  and  owned  by 
him,  the  lease  was  of  the  ground  alone,  and  the  statute  under  discussion 

^^  Comp.  Laws  1897,  §  9257.  ties  shall  be  tenancies  from  month 

^"Mo.  Rev.  St.  1899,  §  410   (R.  S.  to    month   and    may    be   terminated 

1889,  §6371).   A  portion  of  this  sec-  by  one  month's  notice." 

tion  reads:    "All  contracts  or  agree-  =**' Withnell    v.     Petzold,     17     Mo. 

ments    for    the    leasing,    renting   or  App.  669. 

occupation  of  stores,  shops,  etc.,  in  ^^^  Withnell  v.  Petzold,     104     Mo. 

cities,  towns,  and  villages  not  made  409,  16  S.  W.  205,  reversing  17  App. 

in  writing  and   signed  by  the  par-  669. 


283  STATUTORY  PROVISIONS.  [§§'  343,  244 

would  not  apply.*""  Such  a  conclusion  might  very  well  have  been 
reached,  however,  even  under  the  interpretation  of  the  statute  as  de- 
clared by  the  Supreme  Court.  An  oral  letting  of  a  farm  at  the  will 
of  the  lessor  creates  a  tenancy  from  year  to  year  and  is  terminable  by 
the  lessor  upon  sufficient  notice,*"^  but  it  cannot  be  determined  with- 
out notice.  However,  a  mere  cropper  who  is  without  any  interest  in 
or  possession  of  premises,  and  who  has  merely  tilled  the  ground  and 
harvested  the  crops  after  an  entry  for  the  sole  purpose  of  so  doing,  is 
not  entitled  to  notice.*"^  By  virtue  of  the  landlord  and  tenant  statute 
a  parol  agreement  to  rent  for  the  certain  period  of  two  weeks  and 
longer,  until  the  happening  of  a  certain  event,  was  held  to  create  a 
tenancy  from  month  to  month  which  could  only  be  ended  by  a  month's 
notice  to  quit.  The  premises  were  buildings  in  a  city.'*"^  For  the 
same  reason  a  void  lease  to  begin  in  futuro  has  been  held  to  create  a 
month  to  month  tenancy  requiring  a  notice  to  quit.'*"* 

Where  a  tenant  was  holding  as  a  tenant  from  year  to  year  during 
the  year  when  the  statute  became  a  law,  the  act  was  nevertheless  held 
to  apply  and  change  the  holding  for  the  ensuing  year  into  one  from 
month  to  month,  the  premises  being  within  an  incorporated  town.*"^ 

§  243.  Nevada. — "In  all  leases  of  lands  or  tenements  or  any  in- 
terest therein  for  a  month  or  any  term  less  than  a  year,  if  the  tenant 
holds  over  his  term  by  consent  of  his  landlord  the  tenancy  shall  be  con- 
strued to  be  a  tenancy  from  month  to  month,  or  a  tenancy  for  such 
term  less  than  a  year,  as  the  case  may  be.''*"^ 

§  244.  In  New  Hampshire  the  form  of  the  statutory  provision  is 
that  "every  tenancy  or  occupancy  shall  be  deemed  to  be  at  will,  and 
the  rent  payable  upon  demand,  unless  a  different  contract  is  shown."*"' 
The  effect  of  this  act  is  to  change  the  presumption  in  force  at  common 
law  that  every  tenancy  at  will  was  a  tenancy  from  year  to  year.  In 
New  Hampshire  but  little  property  being  in  fact  held  by  tenants,  ex- 
cept buildings  in  cities  and  towns,  which  are  not  usually  let  for  long 
periods  without  written  leases,  a  different  rule  of  presumption  is  intro- 
duced by  statute,  and  every  tenancy  is  presumed  to  he  a  lease  at  will 

'""Delaney   v.    Flanagan,    41     Mo,  ^»' Smith   v.    Smith   Bros.,    62    Mo. 

App.  651.  App.  596. 

^''i  Tiefenbrun    v.    Tiefenbrun,      65  ■««  Winters  v.  Cherry,  78  Mo.  344. 

Mo.  App.  253.  ■">=  Hammon  v.   Douglas,     50     Mo. 

*°-  Davies  v.  Baldwin,  66  Mo.  App.  442. 

577.  ^'"'Comp.  Laws  1900,  §§  3827,  3838. 

""Pub.  St.  1901,  ch.  246,  §  1. 


§§  245-247]  KINDS  OF  tenancy.  284 

with  the  rent  payable  on  demand.*"^  It  is  not  understood,  however, 
that  this  provision  affects  in  any  way  the  rules  of  evidence  at  common 
law  as  to  the  nature  of  the  tenancy,  except  by  changing  the  burden  of 
proof  and  making  it  incumbent  on  the  tenant  to  show  a  tenancy  from 
time  to  time.  It  will  still  be  inferred,  as  at  common  law,  that  the 
tenancy  is  from  year  to  year,  from  the  fact  that  the  original  letting 
from  which  the  tenant  has  held  over  was  from  year  to  year.  And  it 
will  be  inferred  that  a  tenancy  is  from  quarter  to  quarter  or  from 
month  to  month  from  the  fact  that  the  rent  has  been  paid  quarterly 
or  monthly.  The  same  is  true  of  any  other  circumstance  from  which 
the  term  of  the  tenancy  may  be  inferred.*''^ 

§  245.  New  York. — An  agreement  for  the  occupation  of  real  prop- 
erty in  the  city  of  New  York  for  an  indefinite  period  shall  be  deemed 
to  continue  until  the  first  day  of  May  next  after  the  possession  com- 
mences. Eent  is  payable  at  the  usual  quarter  day  for  the  payment  of 
rent  in  that  city  unless  otherwise  expressed  in  the  agreement.*^" 

§  246.  Oklahoma  Territory. — When  rent  is  reserved  payable  at 
intervals  of  three  months  or  less,  the  tenant  shall  be  deemed  to  hold 
from  one  period  to  another,  equal  to  the  intervals  between  the  days  of 
payment,  unless  there  is  an  express  contract  to  the  contrary.  When 
a  tenant  holds  over  with  the  assent  of  his  landlord  after  a  letting  for 
one  or  more  years  he  is  to  be  deemed  a  tenant  from  year  to  year.  In 
other  cases  a  person  in  possession  of  yeal  property  with  the  assent  of 
the  owner  is  presumed  to  be  a  tenant  at  will  till  the  contrary  is 
shown.*  ^^ 

§  247.  In  Rhode  Island  the  usual  common  law  doctrine  in  regard 
to  tenancies  from  year  to  year  is  in  force.  The  rule  is  not  affected  by 
the  statutory  provision  to  the  effect  that  "the  time  agreed  upon  in  a 
definite  letting  shall  be  the  time  of  the  termination  thereof  for  all  pur- 
poses ;  and  if  there  be  no  time  of  termination  agreed  upon  it  shall  be 
deemed  a  letting  from  year  to  year."*^^  This  statute,  as  the  court 
construed  it,  applied  only  where  the  letting  was  definite — that  is  to  say, 
definite  at  least  except  in  regard  to  duration.  The  statute  was  held 
not  to  cover  a  case  where  there  was  no  definite  letting,  but  only  a  per- 
missive occupation  without  terms.*" 

*»»Hazeltine  v.  Colburn,  31  N.  H.  ^»  Rev.  St.  1903,  §§  3320-3322. 

466.  '^  Gen.  St.,  cap.  221,  §  5. 

*"» Currier  v.  Perley,  24  N.  H.  219.  "'Johnson    v.    Johnson,    13    R.    I. 

""  Gen.  Laws  1901,  ch.  46,  Art.  6,  467,  in  the  words  of  Durfee,  C.  J. 
§  202. 


285  STATUTORY   PROVISIONS.  [§§    248,   249 

§  248.  South  Carolina. — The  early  acts  in  this  state  did  not  alter 
the  common  law  in  relation  to  tenancies  from  year  to  year,  and  the 
necessity  of  notice  to  quit  before  the  tenancy  can  be  determined,  either 
by  the  landlord  or  the  tenant."*^*  In  addition  to  the  statute  of  frauds 
in  this  state  it  is  provided  in  the  landlord  and  tenant  act  that  "N'o 
parol  lease  shall  give  a  tenant  a  right  of  possession  for  a  longer  term 
than  twelve  months  from  the  time  of  entering  on  the  premises ;  and  all 
such  leases  shall  be  understood  to  be  for  one  year,  unless  it  be  stipu- 
lated to  be  for  a  shorter  term."*^°  One  effect  of  this  section  is  to  pre- 
vent the  application  of  any  doctrine  of  part  performance  to  render 
valid  a  parol  lease  for  more  than  one  year.*^^  After  the  termination 
of  the  first  year  of  the  holding,  the  tenant  remaining  in  possession  is 
a  tenant  at  will  merely.  The  tenant  has  no  right  to  claim  a  term  in 
the  premises  for  the  second  3'ear,  but  can  be  evicted  on  proceedings 
begun  after  ten  days'  notice.*^'  But  it  seems  that  this  tenancy  at  will 
arising  from  the  continued  possession  after  the  expiration  of  the  first 
year  might  become  a  tenancy  from  year  to  year  which  could  only  be 
terminated  by  three  months'  notice  to  quit.*^^  It  is  just  as  reasonable 
to  adopt  this  conclusion  in  such  a  case  as  to  hold  that  a  term  for  a  year 
created  by  a  valid  instrument  in  writing  becomes  a  tenancy  from  year 
to  year  from  the  continued  occupation  of  the  tenant.*^^ 

§  249.  In  Washington  there  are  the  following  provisions  in  regard 
to  periodic  tenancy :  "In  all  cases  where  real  property  is  leased  for  a 
specified  term  or  period  by  express  or  implied  contract,  whether  writ- 
ten or  by  parol,  the  tenancy  shall  be  terminated  without  notice  at  the 
expiration  of  such  specified  term  or  period."  In  all  cases  of  tenancy 
upon  agricultural  lands,  where  the  tenant  has  held  over  and  retained 
possession  for  more  than  sixty  days  after  the  expiration  of  his  term 
without  any  demand  or  notice  to  quit,  ...  he  shall  be  deemed  to  be 
holding  by  permission,  .  .  .  and  shall  be  entitled  to  hold  under  the 
terms  of  the  lease  for  another  full  year,  and  shall  not  be  guilty  of  an 
unlawful  detainer  during  said  year,  and  such  holding  over  for  the 
period  aforesaid  shall  be  taken  and  construed  as  a  consent  on  the  part 
of  a  tenant  to  hold  for  another  year."''-*^  Under  the  sections  quoted, 
when  tenants  held  for  more  than  sixty  days  without  demand  or  notice 

"*Godard  v.  South     Carolina     R.  "« Godard  v.  South     Carolina     R. 

Co.,  2  Rich.  L.  (S.  Car.)  346.  Co.,  2  Rich.  L.   (S.  Car.)   346. 

"=  Civ.  Code  1902,  §  2416.  ""  State  v.  Fort,  24  S.  Car.  510. 

«'  State  v.  Mays,  24  S.  Car.  190.  *"  Bal.  Code,  §§  5527,  5528. 

"'Hillhouse  v.  Jennings,     60     S. 
Car.  392,  38  S.  E.  596. 


§    250]  KINDS   OF  TENANCY.  286 

to  quit  they  were  then  entitled  to  hold  for  another  year.  This  same 
condition  arose  at  the  expiration  of  the  next  year.  An  oral  or  written 
demand  for  the  premises  within  sixty  days  after  the  expiration  of  any 
year,  or  any  notice  prior  to  the  end  of  the  year  that  the  lease  would  he 
terminated  was  sufficient  to  authorize  the  bringing  of  an  action  of 
forcible  detainer.*^^  A  letting  for  an  indefinite  time,  with  monthly 
or  other  periodic  rent  reserved,  creates  a  tenancy  from  month  to  month 
or  from  rent  day  to  rent  day,  and  may  be  terminated  by  thirty  days' 
notice  preceding  the  end  of  any  of  said  periods.*^^ 

The  fact  that  without  any  agreement  for  a  change  in  the  original 
tenancy  the  tenant  began  paying  rent  for  quarterly  periods,  which  was 
accepted  at  his  own  request  and  for  his  own  accommodation,  would  not 
operate  to  change  a  tenancy  from  month  to  month  into  one  for  quar- 
terly periods.*^^ 

"Whenever  any  person  obtains  possession  of  premises  without  the 
consent  of  the  owner  or  other  person  having  the  right  to  give  said  pos- 
session, he  shall  be  deemed  a  tenant  by  sufferance  merely,  and  shall  be 
liable  to  pay  reasonaljle  rent  for  the  actual  time  he  occupied  the 
premises,  and  shall  forthwith,  on  demand,  surrender  his  said  possession 
to  the  owner  or  person  Avho  had  the  right  of  possession  before  said 
entry,  and  all  his  right  to  possession  of  said  premises  shall  terminate 
immediately  upon  said  demand."*''* 

§  250.  Wyoming. — It  is  provided  that  there  shall  not  exist  any 
tenancy  by  implication  or  operation  of  law  except  a  tenancy  by  suffer- 
ance. Upon  the  expiration  of  a  term,  there  is  no  implied  renewal  of 
the  same  either  by  the  tenant  holding  over  or  by  the  landlord  accepting 
rent  for  such  period  of  holding  over.  Such  holding  over  shall  consti- 
tute only  a  tenancy  at  sufferance,  with  the  rights,  duties,  obligations 
and  incidents  of  such  tenancy.  jSTo  tenancy  other  than  that  by  suffer- 
ance shall  exist  after  the  termination  of  the  original  lease  unless 
created  by  express  contract  in  writing.*^^ 

*^  Mounts  V.  Goranson,  29  Wash.  ^"London  &e.  Bank  v.  Curtis,  27 

261,  69  Pac.  740.  Wash.  656,  68  Pac.  329. 

"-Bal.  Code,  §  4969;   Schreiner  v.  "^"^  Bal.  Code  1897,  §  4571. 

Stanton,  26  Wash.  563,  67  Pac.  219.  *"'  Rev.  St.  1899,  §§  2272,  2273. 


CHAPTER  IV. 

NOTICE  TO   QUIT. 


1.  Necessity  for  Notice,  §§  251-259. 

2.  Sufficiency  of  Notice,  §§  260-271. 


3.  Service  of  Notice,  §§  272-276. 

4.  Statutory  Provisions,  §§  277-317. 


I.     Necessity  for  Notice. 


§  251.    Notice  to  quit  is  necessary  to  terminate  a  year  to  year  hold- 
ing.^    The  obligations  imposed  by  a  year  to  year  tenancy  not  only 


^England:  Johnstone  v.  Huddle- 
stone,  4  B.  &  C.  922;  Chapman  v. 
Towner,  6  M.  &  W.  100.  California: 
Sullivan  v.  Gary,  17  Cal.  80.  Con- 
necticut: Larkin  v.  Avery,  23  Conn. 
304.  Illinois:  Herrell  v.  Sizeland, 
81  111.  457.  Indiana:  Jackson  v. 
Hughes,  1  Blackf.  (Ind.)  421.  Ken- 
tucky: Miller  v.  Shackleford,  4 
Dana  (Ky.)  264;  Morehead  v.  Wat- 
kyns,  5  B.  Mon.  (Ky.)  228.  Mary- 
land: Hall  V.  Myers,  43  Md.  446. 
Missouri:  Ridgely  v.  Stillwell,  25 
Mo.  570.  New  Jersey:  Den  v. 
Drake,  14  N.  J.  L.  523;  Den  v.  Blair, 
15  N.  J.  L.  181;  Den  v.  Snowhill,  23 
N.  J.  L.  447.  New  Hampshire:  Cur- 
rier V.  Perley,  24  N.  H.  219.  New 
York:  Jackson  v.  Salmon,  4  Wend. 
(N.  Y.)  327;  Bradley  v.  Covel,  4 
Cow.  (N.  Y.)  349;  People  v.  Paul- 
ding, 22  Hun  (N.  Y.)  91.  North 
Carolina:  Irwin  v.  Cox,  5  Ired.  L. 
(N.  Car.)  521;  Stedman  v.  Mcintosh, 
4  Ired.  L.  (N.  Car.)  291.  Oregon: 
Garrett  v.  Clark,  5  Oreg.  464;  Wil- 
liams v.  Ackerman,  8  Oreg.  405. 
Pennsylvania:  Brown  v.  Vanhorn,  1 
Binn.  (Pa.)  334,  n.;  Logan  v.  Her- 
ron,  8  S.  &  R.  (Pa.)  459;  Thomas  v. 
Wright,  9  S.  &  R.  (Pa.)  87;  McDow- 
ell V.  Simpson,  3  Watts  (Pa.)  129. 
South    Carolina:     Godard    v.    South 


Carolina  R.  Co.,  2  Rich.  L.  (S.  Car.) 
346;  Floyd  v.  Floyd,  4  Rich.  L. 
(S.  Car.)  23.  Rhode  Island: 
Thurber  v.  Dwyer,  10  R.  I.  355. 
Vermont: :  Hanchet  v.  Whitney,  1 
Vt.  311;  Hall  v.  Wadsworth,  28  Vt. 
410;  Boudette  v.  Pierce,  50  Vt.  212. 
Notice  to  quit  generally.  The  doc- 
trine of  notice  to  quit  is  very  old. 
It  is  founded  on  such  evident  prin- 
ciples of  right,  that  the  courts  at  the 
earliest  times  recognized  its  justice, 
and  required  notice  to  terminate 
certain  tenancies.  The  object  was  to 
protect  the  tenant  more  fully  from 
the  arbitrary  will  of  the  lessor  and 
also  to  save  the  lessor  from  loss  by  a 
too  sudden  determination  of  the 
tenancy  by  the  tenant,  the  requisite 
notice  being  mutual.  As  leases  be- 
came more  free,  the  courts,  follow- 
ing the  liberal  policy  which  had  first 
dictated  notice,  extended  the  rule  so 
as  to  include  tenancies  not  falling 
within  the  original  rule.  The  rights 
of  both  parties  have  been  the  better 
secured  by  this  wise  course  of  de- 
cision, and  tenancies  which  were  at 
one  time  entirely  dependent  upon 
the  will  of  either  party  have  been 
changed  from  precarious  tenures  to 
fixed  and  stable  holdings.  In  the 
American    states    the    tendency    of 


287 


§•  252]  NOTICE    TO    QUIT.  288 

precluded  the  tenant  from  leaving  during  the  year  without  being 
liable  for  the  full  year's  rent,  but  also  prevented  him  from  vacating 
at  the  end  of  the  year  unless  he  gave  proper  notice  of  his  intention  to 
do  so  and  thus  relieved  himself  from  the  responsibility  of  paying 
rent  for  the  ensuing  year.  The  obligation  was  to  give  notice  before 
the  expiration  of  that  or  of  any  succeeding  year.^  Thus,  where  a 
year  to  year  tenant  vacated  at  the  end  of  tlie  year,  but  allowed  his 
sub-tenant  to  continue  in  occupation  for  one  entire  year  and  a  por- 
tion of  another,  the  principal  tenant  was  held  liable  for  the  full  two 
years'  rent.^  "The  ancient  rule  of  the  common  law  required  that  the 
notice,  when  necessary  and  not  otherwise  limited  by  agreement  of  the 
parties,  should  be  for  half  a  year  or  six  calendar  months  expiring 
at  the  end  of  the  current  year  of  the  tenancy;  and  that  a  notice  at 
any  other  period,  sooner  or  later,  will  not  be  sufficient."* 

§  252.  In  the  United  States  the  len^h.  of  notice  depends  almost 
entirely  on  statute.  Some  of  the  states  have  followed  the  English 
rule  as  to  the  length  of  notice  but  in  most  the  length  of  the  notice 
has  been  shortened  to  three  months.  A  statute  providing  for  three 
months'  notice  to  terminate  estates  at  will  was  held  to  apply  to  ten- 
ancies from  year  to  year.  In  the  latter  case  it  was  held  that  the 
three  months  must  terminate  at  the  end  of  the  year.^  In  Ohio  a  dis- 
tinction has  been  made  between  those  tenancies  from  year  to  year 
from  which  the  rule  requiring  notice  to  quit  had  its  origin,  and  those 
arising  from  a  holding  over  by  the  tenant  after  the  expiration  of  a 
lease  for  a  specified  term.  In  each  year  of  occupancy  under  the 
former  there  is,  it  is  said,  a  growing  interest  in  the  ensuing  year 
springing  out  of  the  original  contract.     While  in  the  latter  case  a 

legislation  has  been  to  enlarge  the  161,  quoted  in  Roberson  v.  Simons, 

common  law  doctrine,  but  with  the  109  Ga.  360,  34  S.  E.  604. 

exceptions   of    the    additions   made  '  Roberson  v.  Simons,  109  Ga.  360, 

and  a  few  changes  in  the  form  of  the  34  S.  E.  604. 

notice,  its  length,  etc.,  it  remains  as  *  Den  v.  Drake,  14  N.  J.  L.  523,  per 

it  was  before.     The  doctrine  of  no-  Hornblower,   C.   J.     To   same   effect 

tice  to  quit  is  one  that  is  peculiar  see    Hall    v.    Myers,    43    Md.    446; 

to  the  relation  of  landlord  and  ten-  Critchfield  v.  Remaley,  21  Neb.  178, 

ant,  and  belongs  entirely  to  it.     It  31  N.  W.  687;  Den  v.  Blair,  15  N.  J. 

sprung  up  to  alleviate  the  hardships  L.  181;    Hanchet  v.  Whitney,  1  Vt. 

that  arose   from   that   relationship,  311;   Sartwell  v.  Sowles,  72  Vt.  270, 

and  has  been  strictly  confined  to  its  48  Atl.  11;  Brown  v.  Kayser,  60  Wis. 

original   use.— Am.    Dec.    125.     Note  1,  18  N.  W.  523. 

by  A.  C.  Freeman.  ^  Hunter  v.  Frost,  47  Minn.  1,  49 

^  Right  V.  Darby,  1  Term  R.  159,  N.  W.  327. 


I 


289  NECESSITY   FOR  NOTICE.  [§   253 

new  contract  arises  each  year  of  the  holding  by  implication  from  the 
conduct  of  the  parties.  As  the  assent  of  both  parties  is  necessary  to 
the  creation  of  this  new  contract  at  the  beginning  of  each  year,  it  is 
obvious  that  if  the  tenant  chooses  not  to  hold  over,  and  vacates  the 
premises  at  the  end  of  any  year,  the  tenancy  ceases  without  liability 
for  rent  for  the  ensuing  year,  though  no  notice  of  his  intention  to  re- 
move be  given,  as  certainly  as  it  does  upon  the  expiration  of  a  lease 
expressly  made  for  a  specific  term.  The  holding  over  after  the  end 
of  any  year  without  the  landlord's  consent,  is  equivalent  to  holding 
over  after  the  expiration  of  a  lease  for  a  specific  term.*^ 

§  253.  At  common  law  a  tenant  from  month  to  month  must  gfive 
thirty  days'  notice  of  his  intention  to  vacate,'  and  unless  he  does 
he  will  be  liable  for  a  month's  rent  after  he  does  actually  vacate.^ 
In  a  tenancy  from  week  to  week,  a  full  week's  notice  is  certainly  suffi- 
cient; and  in  a  tenancy  from  month  to  month,  a  full  month's  notice 
was  of  course  sufficient.^  It  has  even  been  queried  whether  a  notice 
for  one-half  week  or  one-half  month  would  not  be  sufficient.^"  In 
regard  to  this  difference  it  was  said  in  a  recent  case:^^  "By  strict 
relativeness,  the  rule  of  a  half-year's  notice  in  tenancies  from  year  to 
year  would  only  require  a  half-month's  or  a  half-week's  notice  in 
cases  of  monthly  or  weekly  tenancies.  The  briefness  of  the  latter  and 
the  length  of  the  former  kind  of  tenancies,  was  the  probable  reason 
why  the  rule  was  not  uniform." 

The  requirement  for  notice  may  be  affected  by  the  stipulations  of 
the  agreement  under  which  the  month  to  month  tenancy  arose.  Thus 
no  notice  to  quit  was  necessary  where  the  receipts  for  rent  given  the 
tenant  every  month  provided  that  "this  term  of  hiring  and  letting 
is  for  one  month  only  and  will  expire  as  aforesaid."^ ^  Though  it 
was  called  a  tenancy  from  month  to  month,  it  was  in  effect  a  series 
of  separate  leases  for  terms  of  one  month  each.    A  provision  that  the 

"  Gladwell  v.  Holcomb,  60  Ohio  St.  « Donohue  v.  Chicago  &c.  Co.,  37 

427,  54  N.  E.  473,  citing  Alexander  v.  111.  App.  552. 

Harris,  4  Cranch  (U.  S.)  298.  "Doe  v.  Hazell,  1  Esp.  94;  Doe  v. 

'  Stewart  v.  Murrell,  65  Ark.  471,  Raffan,  6  Esp.  4. 

47  S.  W.  130;   Donohue  v.  Chicago  ^"  Jones    v.    Willis,    8    Jones    (N. 

&c.  Co.,  37  111.  App.  552;  Steffens  v.  Car.)  L.  430. 

Earl,  40  N.  J.  L.  128,  133;  People  v.  "Stewart  v.  Murrell,  65  Ark.  471, 

Darling,  47  N.  Y.  666;    Shipman  v.  47   S.   W.   130,  per   Hughes,   J.      To 

Mitchell,  64  Tex.  174;  Utah  Loan  &c.  same  effect  see   Prescott  v.  Elm,  7 

Co.  V.  Garbutt,  6  Utah  342,  23  Pac.  Cush.  (Mass.)  346. 

"^58.  '-Gibbons  v.   Dayton,  4  Hun    (N. 

Y.)  451. 
Jones  L.  &  T.— 19 


§  354]  NOTICE  TO  QUIT.  290 

landlord  might  have  the  premises  for  his  own  use  when  he  wanted 
them,  would  also  do  away  with  the  necessity  for  notice.^' 

§  254.  A  written  notice  to  terminate  a  tenancy  strictly  at  will  or 
by  sufferance  was  not  required  at  common  law,  and  is  not  now  neces- 
sary except  when  the  statute  so  requires  it.^*  At  common  law,  a  ten- 
ant at  sufferance  was  not  entitled  to  any  notice  to  quit.^^  He  had  no 
estate  in  the  premises.  He  was  merely  not  a  trespasser,  and  the  land- 
lord could,  without  ceremony,  at  any  time  enter  and  put  him  out.^® 
The  possession  of  tenants  at  sufferance  is  wrongful  and  they  would 
not  he  entitled  to  notice  to  quit  prior  to  the  institution  of  an  action 
of  ejectment.^^  Mere  holding  over  after  the  end  of  a  specified  term 
does  not  entitle  a  tenant  to  notice.  There  must  be  circumstances  from 
which  the  court  can  imply  a  new  agreement  for  a  further  holding.^® 

A  tenant  at  sufferance  would,  however,  be  entitled  to  reasonable 
time  to  remove  himself,  his  famUy  and  goods,  and  to  remain  or  enter 
for  that  purpose,  without  being  deemed  a  trespasser.  Where  the 
premises  were  the  lower  floor  of  a  tenement  house,  forty-eight  hours 
were  enough  for  this  purpose.^^  After  the  party  by  right  entitled  to 
possession  against  a  tenant  at  sufferance  had  obtained  it  peaceably, 
two  days  was  sufficient  time  for  the  tenant  to  remove  effects  con- 
sisting of  a  stock  of  groceries.^"  But  where  the  notice  required  a 
tenant  to  quit  on  a  specified  day,  it  was  held  that  an  action  to  recover 
possession  brought  on  that  day  was  premature.^^ 

The  interest  of  a  tenant  who  was  strictly  a  tenant  at  wilP'^  could  at 
common  law  be  terminated  at  any  time  by  either  party  without  any 
previous  notice  to  quit.-^     It  was  only  necessary  to  give  the  tenant 

"  People  V.  Schackno,  48  Barb.  (N.  "  Pratt  v.  Farrar,  10  Allen  (Mass.) 

Y.)  551,  519;  Hooten  v.  Holt,  139  Mass.  54,  29 

"Guvernator  v.  Renin,  66  N.  J.  L.  N.    E.    221;    Wardell    v.    Etter,    143 

114,  48  Atl.  1023.  Mass.  19,  8  N.  E.  420. 

"  Hauxhurst    v.    Lobree,    38    Cal.  ^  Arnold  v.  Nash,  126  Mass.  397. 

563;    Emerick  v.   Tavener,   9   Grat.  -^Decker  v.   McManus,   101   Mass. 

(Va.)   220;   Peters  v.  Balke,  170  111.  63. 

304,    48    N.    E.    1012;    Wamsganz  v.  -See  supra,  §  194. 

Wolff,  86  Mo.  App.  205;   Kinsley  v.  "^California:     Blum  v.  Robertson, 

Ames,  2  Mete.  (Mass.)   29;  Hollis  v.  24  Cal.  127.     Colorado:    Crane  v.  An- 

Pool,  3  Mete.    (Mass.)    350;    Doe  v.  drews,   6  Colo.   353.     Maine:     Davis 

Thomas,  6  Exch.  854,  857;   Pinhorn  v.  Thompson,  13  Me.  209;  Moore  v. 

V.  Souster,  8  Exch.  763,  772.  Boyd,  24  Me.  242;  Withers  v.  Larra- 

'« Wheeler  v.  Wood,  25  Me.  287.  bee,  48  Me.  570;    Esty  v.  Baker,  50 

"  McClung  V.  Echols,  5  W.  Va.  204.  Me.    325.      Massachusetts:      Ellis    v. 

^^Calderwood   v.   Brooks,    28    Cal.  Paige,  1  Pick.  (Mass.)  43.    Missouri: 

151.  Grant  v.  White,  42  Mo.  285.     New 


291  NECESSITY   FOR  NOTICE.  [§'  355 

a  reasonable  time  to  remove  his  effects.  'Tenant  at  will/'  says  Little- 
ton, "is  where  lands  or  tenements  are  let  by  one  man  to  another,  to 
have  and  to  hold  to  him  at  the  will  of  the  lessor,  by  force  of  which 
lease  the  lessee  is  in  possession.  In  this  case  the  lessee  is  called  ten- 
ant at  will,  because  he  hath  no  certain  or  sure  estate,  for  the  lessor 
may  put  him  out  at  what  time  it  pleaseth  him."^* 

§  255.  When  there  is  a  valid  lease  for  a  time  certain,  no  notice  to 
quit  is  necessary  to  terminate  it,  for  the  parties  know  when  the  term 
ends.^^  This  universal  rule  of  the  common  law  has  been  recognized 
by  declaratory  statutes  in  many  codes  and  statutes.  With  the  single 
exception  of  Delaware  the  doctrine  prevails  throughout  all  the  states 
of  the  union,  modified  slightly  in  a  few  cases,  however,  by  the  stat- 
utes regarding  actions  for  the  recovery  of  possession  of  land.  If 
there  is  a  valid  lease  for  a  fixed  time,  the  tenant  is  bound  to  sur- 
render possession  at  the  end  of  the  term  without  regard  to  covenants 
to  that  effect  in  the  instrument  of  demise.^*'  So,  in  case  a  lease  fixes 
the  time  for  the  expiration  of  the  term,  and  provides  that  the  tenant 
shall  restore  possession  of  the  demised  premises,  the  duty  of  the  ten- 
ant to  yield  up  the  possession  will  not  be  dependent  upon  a  demand 
of  possession  or  upon  any  proceeding  to  be  taken  or  thing  done  by 

York:      Jackson    v.    Livingston,     3  184;  Pierson  v.  Doe,  2  Ind.  123;  Chi- 

Johns.  (N.  Y.)  455.     North  Carolina:  cago  &c.  R.  Co.  v.  Perkins,  12  Ind. 

Humphries  v.  Humphries,  3  Ired.  L.  App.  131;    Myerson  v.  Neff,  5   Ind. 

iN.  Car.)  362.     Pennsylvania:    Over-  523;  Layman  v.  Throp,  11  Ind.  352; 

deer  v.  Lewis,  1  W.  &  S.   (Pa.)   90.  McClure   v.    McClure,    74    Ind.    108. 

Vermont:    Rich  v.  Bolton,  46  Vt.  84.  Kentucky:     Barlow  v.  Bell,   4  Bibb 

England:     Keech  v.   Hall,  1   Dougl.  (Ky.)     106.       Maine:      Lithgow    v. 

21;  Doe  v.  McKaeg,  10  B.  &  C.  721;  Moody,  35  Me.  214;  Clapp  v.  Paine, 

21  E.  C.  L.  304.  18  Me.   264;    Preble  v.   Hay,  32  Me. 

-^  Litt,  §  68.  456.     Missouri:    Stephens  v.  Brown, 

=' Arizona:    Rev.  St.  of  Ariz.  1901,  56  Mo.  23;   Young  v.  Smith,  28  Mo. 

§  2694.     California:    Kuhn  v.  Smith,  65.     New  York:    Smith  v.  Littlefield, 

125  Cal.  615,  58  Pac.  204;  Canning  v.  51  N.  Y.  539.     Pennsylvania:    Evans 

Fibush,    77    Cal.    196,    19    Pac.    376;  v.  Hastings,  9  Pa.   St.   273.     Texas: 

McKissick  v.  Ashby,  98  Cal.  422,  33  Hendrick    v.    Cannon,    5    Tex.    248. 

Pac.  729.     Colorado:    Brandenburg  v.  Washington:     Stanford  Land  Co.  v. 

Reitman,   7    Colo.    323,    3   Pac.   577;  Steidle,    28   Wash.    72,    68   Pac.    178. 

Mills  Ann.  St.  of  Colo.,  §  1976.     Illi-  English:    Cobb  v.  Stokes,  8  East  358; 

nois:     Walker  v.  Ellis,  12  111.  470;  Messenger  v.  Armstrong,  1  Term  R. 

Secor  V.  Pestana,  37  111.  525;  Wilier-  53. 

ton  V.  Shoemaker,  60  111.  App.  126.  ="  Schreiber  v.  Chicago  &c.  R.  Co., 

Indiana:     Mason  v.  Kempf,   11  Ind.  115  111.  340,  3  N.  E.  427;  Stockwell  v. 

App.  311;  Alcorn  v.  Morgan,  77  Ind,  Marks,  17  Me.  455. 


§  256]  NOTICE  TO  QUIT.  292 

the  landlord.^^  According  to  common  law,  when  the  tenancy  termi- 
nated at  a  day  certain,  the  landlord  could  always  commence  his  action 
of  ejectment  to  recover  possession  of  the  land,  after  the  expiration  of 
the  lease,  without  any  notice  to  quit.  This  he  could  do,  although  the 
tenant  became  a  tenant  by  sufferance  by  holding  after  the  term  without 
his  permission.^^  The  termination  of  an  extension  to  a- lease  is  identi- 
cal with  a  lease  for  a  definite  term  having  no  extension.  No  notice 
to  quit  is  necessary.  All  that  would  be  required  in  regard  to  a  still 
further  extension  would  be  the  expression  of  an  opinion  not  to  accept 
it.2» 

§  256.  Where  a  tenant  holds  premises  for  the  full  term  provided 
for  by  a  void  agreement,  the  agreement  is  nevertheless  effective  to  set 
a  time  for  the  termination  of  the  term  and  renders  a  notice  to  quit 
at  the  end  of  the  term  unnecessary,^**  "The  doctrine  of  the  English 
cases  seems  to  be  that  a  party  entering  under  a  lease,  void  by  the 
statute  of  frauds,  for  a  term  as  expressed  in  it  of  more  than  one  year 
and  paying  rent,  is  treated  as  a  tenant  from  year  to  year  from  the  time 
of  his  entry,  subject  only  to  the  right  to  terminate  the  tenancy  with- 
out notice  at  the  end  of  the  specified  term.  And  to  that  extent  and 
for  that  purpose  only,  the  terms  of  agreement,  in  such  case,  regulate 
the  time  to  quit.  This  right  is  held  to  be  reciprocal."^  ^  The  agree- 
ment for  termination  will  bind  the  parties  if  the  property  is  held 
up  to  the  period  designated  in  the  lease  and  no  notice  to  quit  will 
be  necessary,  though  if  such  lease  be  for  a  number  of  years,  it  may 
be  terminated  at  the  end  of  any  yearly  period  on  proper  notice.^^ 

A  parol  lease  for  a  single  year  would,  in  most  jurisdictions,  be  as 
valid  to  create  a  definite  term  for  years  as  an  instrument  in  writing 
would  be.  Even  where  it  was  not  valid,  it  would  expire  by  its  own 
limitation  and  bring  the  bolding  to  an  end  without  any  notice  to 
quit.^^    Prior  occupation  for  several  years  on  a  year  to  year  tenancy 

"Poppers  V.  Meagher,  148  111.  192,  R  C.  L.  263;  Davenish  v.  Moffatt,  15 

35  N.  E.  805.  A.  &  E.  (N.  S.)  257,  69  E.  C.  L.  256; 

^  Smith  V.  Littlefield,  51  N.  Y.  539.  Doe  v.  Stratton,  4  Bing.  446;   Tress 

2"  Whetstone  v.  Davis,  34  Ind.  510.  v.  Savage,  4  E.  &  B.  36,  82  E.  C.  L.  36. 

=0  Ryan  v.  Mills,  129  Mich.  170,  88         ^'  Coudert  v.  Cohn,  118  N.  Y.  309, 

N.  W.  392;    Williams  v.  Deriar,   31  23  N.  E.  298,  per  Bradley,  J.,  citing 

Mo.  13;  Teft  v.  Hinchman,  76  Mich.  Doe  v.  Stratton,  4  Bing.  446. 
672,  43  N.  W.  680;  Butts  v.  Fox,  96         ^=  Butts  v.  Fox,  96  Mo.  App.  437,  70 

Mo.  App.  437,  70  S.  W.  515;  Coudert  S.  W.  515. 

V.  Cohn,  118  N.  Y.  309,  23  N.  E.  298;         ^=  Teft  v.  Hinchman,  76  Mich.  672, 

Mollis  v.  Pool,  3  Mete.   (Mass.)  350;  43  N.  W.  680;  Butts  v.  Fox,  96  Mo. 

Berrey  v.  Lindley,  3  M.  &  G.  498,  42  App.  437,  70  S.  W.  515. 


293  NECESSITY   FOR   NOTICE.  [§   357 

would  not  affect  the  result.     In  such  a  case  a  definite  parol  agree- 
ment for  a  year's  holding  would  end  the  tenancy  at  the  expiration  of 
I'     the  year  without  a  notice  to  quit.^* 

§  257.  No  notice  to  quit  is  necessary  when  the  parties  do  not 
stand  in  the  relation  of  landlord  and  tenant,  and  so  no  notice  is  neces- 
sary after  a  tenant  has  repudiated  the  relation.^^  Where  a  tenant  sets 
his  landlord  at  defiance  and  does  an  act  disclaiming  to  hold  under  him 
as  tenant,  this  dispenses  with  the  necessity  of  notice  to  quit.  An  in- 
stance of  this  is  found  in  the  act  of  attorning  to  a  stranger.^®  The 
reason  for  this  rule  has  been  aptly  stated  to  be  that  "one  is  not  al- 
lowed to  blow  hot  and  cold  in  the  same  breath,  i.  e.,  if  he  disallows 
the  relation,  he  cannot  afterward  claim  the  privileges  of  a  tenant."^'' 
By  a  plea  of  title  in  himself  in  an  ejectment  suit,  a  tenant  waives 
the  right  to  insist  upon  ordinary  notice  to  terminate  the  tenancy .^^ 
In  an  action  of  unlawful  detainer,  it  is  not  necessary,  after  the  defend- 
ant has  disclaimed  the  relation  of  tenant,  for  the  landlord  to  prove 
any  demand  for  possession  before  suit  is  brought;  a  disclaimer  is 
equivalent  to  a  demand  and  refusal.^''  No  notice  to  quit  is  necessary 
to  entitle  the  landlord  to  recover  possession  from  a  tenant  who  has 
conveyed  in  fee  even  before  the  termination  of  the  lease.'**'  A  mere 
licensee  as  to  the  occupancy  of  land  is  not  entitled  to  notice  to  quit 
but  may  be  ordered  to  vacate  at  any  time  and  becomes  a  trespasser  on 
his  failure  to  obey  such  an  order.*^  A  mere  intruder,  occupying 
without  claim  of  lawful  authority,  cannot  insist  upon  any  rights 

^  Brandenburg  v.  Reitman,  7  Colo.  Steinhauser  v.  Kuhn,  50  Mich.  367, 

323,  3  Pac.  577.  15  N.  W.  367;  Vincent  v.  Corbin,  85 

^^  Simpson   v.   Applegate,    75    Cal.  N.  Car.  108;  Head  v.  Head,  7  Jones 

342,  17  Pac.  237;  Bolton  v.  Landers.  L.  (N.  Car.)  620;  Ladd  v.  Riggle,  6 

27  Cal.  104;    Eberwine  v.  Cook,  74  Heisk.    (Tenn.)    623;    Doe    v.    Wil- 

Ind.  377;    Sims  v.  Cooper,  106  Ind.  liams,  2  Cowp.  621;    Doe  v.  Hull,  2 

87,  5  N.  E.  726;  Tobin  v.  Young,  124  D.  &  R.  38;   Doe  v.  Stanion,  1  M.  & 

Ind.  507,  24  N.  E.  121;  Roosevelt  v.  W.  695;  Tew  v.  Jones,  13  M.  &  W.  12. 

Hungate,     110     111.     595;     Bodwell  ^^  Head  v.  Head,   7  Jones  L.    (N. 

Granite  Co.  v.  Lane,  83  Me.  168,  21  Car.)  620,  per  Pearson,  J. 

Atl.  829;  Herrell  v.  Sizeland,  81  111.  =^' Doss  v.  Craig,  1  Colo.  177;   Cat- 

457;    Fogle   v.   Chaney,   12   B.    Mon.  lin  v.  Washburn,  3  Vt.  25. 

(Ky.)  138;  Den  v.  Blair,  15  N.  J.  L.  ^  Rabe    v.    Fyler,    10    Sm.    &    M. 

181;    Tuttle  v.  Reynolds,  1  Vt.   80;  (Miss.)  440. 

Chamberlin  v.  Donahue,  45  Vt.  50;  *"  Trustees  &c.  v.  Meetze,  4  Rich.  L. 

Emerick  v.  Tavener,  9  Grat.    (Va.)  (S.  Car.)  50. 

220.  "  Johns  v.  McDaniel,  60  Miss.  486. 

^'Kunzie  v.  Wixom,  39  Mich.  384; 


§§  258,  259]  NOTICE  TO  QUIT.  294 

against  the  rightful  owner  growing  out  of  his  occupation,  and  there- 
fore is  not  entitled  to  notice  to  quit,'*- 

§  258.     Where  a  certain  kind  of  notice  is  by  statute  required  to 
terminate  a  tenancy,  a  proper  notice  is  essential  to  end  the  holding. 

The  tenant  will  continue  liable  for  rent  even  after  he  has  aban- 
doned the  premises  for  a  longer  time  than,  the  period  for  which  he 
holds,  unless  he  gives  the  required  notice.^^  It  is  usually  required 
that  notice  be  in  writing  and  this  requirement  must  be  complied  with 
to  render  the  notice  effective.  An  oral  notice  will  not  end  the  ten- 
ancy,** The  tenant's  abandonment  which  is  known  by  the  landlord 
will  not  end  the  tenancy  unless  the  landlord  accepts  a  surrender.*^ 
For  the  landlord  to  accept  possession  of  course  terminates  the  hold- 
ing and  ends  the  liability  of  the  tenant  for  future  accruing  rent. 
Such  was  the  ground  for  decision  in  a  case  where  the  lessor  accepted 
payment  of  a  judgment  for  rent  covering  a  short  period  after  the 
tenant  abandoned  the  premises.  By  so  doing  the  landlord  waived 
his  right  to  hold  the  tenant  for  future  rent.*''  A  notice  from  a  ten- 
ant to  his  landlord  that  he  has  transferred  the  premises  is  not  good 
as  a  tenant's  notice  to  quit  and  does  not  end  the  tenancy  because  not 
a  sufficient  compliance  with  the  statute.*'^ 

§  259.     The  rights  and  duties  in  respect  to  the  giving  of  notices  to 
quit  between  landlord  and  tenant  are  mntual  and  reciprocal.     The 

common  case  is  that  of  the  landlord  who  is  required  to  give  notice  to 
get  rid  of  the  tenant,  but  in  all  periodical  tenancies  the  landlord  is 
entitled  to  a  notice  of  equal  length  before  the  tenant  can  leave  the 
premises  and  terminate  his  liability  for  rent.**  That  some  doubt 
may  have  existed  on  this  point  is  shown  by  the  language  of  the  court 
in  an  early  Vermont  case.  The  tenant  from  year  to  year  had  left 
after  only  two  weeks'  notice  and  denied  his  liability  for  future  rent. 
Judge  Bennett  said :  "The  tenant  could  not  quit  at  pleasure,  and 
thus  debar  the  landlord  of  all  accruing  rent.  In  a  tenancy  from 
year  to  year,  a  right  to  notice  should,  at  least  to  some  extent,  be  re- 

^' Lewis  V.  Ringo,  3  A.  K.  Marsh.  151   N.   E.   462;    Waples  v.   City  of 

(Ky.)    247;    Petty  v.   Malier,   15   B.  New  Orleans,  28  La.  Ann.  688. 

Mon.  (Ky.)  591,  606.  '"  Betz  v.  Maxwell,  48  Kan.  142,  29 

"Rollins  V.   Moody,    72   Me.   135;  Pac.  147. 

Smith  V.  Smith,  62  Mo.  App.  596.  ^"  Whicher  v.    Cottrell,   165   Mass. 

"  Chapman   v.   Tiffany,    70    N.    H.  351,  43  N.  E.  114. 

249,  47  Atl.  603.  ^'Currier  v.  Perley,  24  N.  H.  219; 

^^  Taylor  v.  Tuson,  172  Mass.  145,  Morehead    v.    Watkyns,    5    B.    Mon. 

(Ky.)  228. 


S95  SUFFICIENCY    OF    NOTICE,  [§    260 

garded  as  reciprocal."*®  In  statutes  regarding  notice  to  quit  there 
is  frequently  an  express  provision  to  the  effect  that  the  right  to  receive 
notice  to  quit  and  the  duty  to  give  it  is  mutual  between  the  parties. 
This  construction  is  usually  given  to  statutes  even  where  there  are  no 
express  provisions  to  this  effect.  In  the  case  of  the  Kansas  statute, 
however,  the  language  was  so  clear  and  unambiguous  that  the  court 
held  notice  from  the  tenant  to  the  landlord  was  not  necessary.^^ 
Codes  based  upon  the  Kansas  act  would  probably  receive  a  similar 
construction. 

II.     Sufficiency   of  Notice. 

§  260.  That  the  notice  must  point  to  the  time  for  the  tenants 
to  quit  is  a  general  requirement  based  on  obvious  grounds  of  con- 
venience and  justice.^ ^  In  holding  that  a  demand  for  present  pos- 
session would  not  operate  as  a  notice  to  quit  at  a  future  day  it  was 
said,  after  an  enumeration  of  the  essential  parts  of  a  notice:  "It  is, 
however,  unnecessary  to  say  more  here  than  that  a  simple  demand 
of  present  possession,  which  is  all  that  the  testimony  shows,  is  not 
a  notice  to  quit  after  the  expiration  of  thirty  days.  Without  an 
antecedent  notice  the  landlord  here  was  not  entitled  to  possession, 
and  it  must  be  plain  that  a  demand  for  a  possession  to  which  he  is 
not  entitled  amounts  to  nothing,  certainly  not  to  a  notice  to  quit  at  a 
future  time."^^  Thus  testimony  was  adduced  in  another  case  that 
on  several  occasions  the  landlord  told  the  tenant  to  clear  out,  to  leave 
the  premises  and  that  he  would  not  have  him  there.  Some  of  these 
conversations  were  more  than  half  a  year  before  the  end  of  the  term. 
But  the  objection  to  their  sufficiency  was  that  they  set  no  time  at 
which  the  tenant  must  quit  and  further  that  they  imported  an  im- 
mediate quitting  and  alluded  to  no  future  period  whatever.^^  And 
it  has  been  held  that  notice  by  a  tenant  that  he  surrenders  possession 
on  the  day  on  which  the  notice  is  given  would  not  terminate  the  ten- 
ancy on  the  expiration  of  one  month  from  that  date,  even  though 
one  month's  notice  only  is  required  to  terminate  such  a  tenancy.^* 
In  explanation  of  this  requirement  the   Massachusetts  court  said: 

« Hall  v.  Wadsworth,  28  Vt.  410.  =-  McLean    v.    Spratt,   19    Fla.    97, 

="  Nelson  v.  Ware,  57  Kan.  670,  47  101,  per  Westcott,  J. 

Pac.  540,  reversing  4  Kan.  App.  258,  "■''  Hanchet  v.  Whitney,  1  Vt.  311. 

45  Pac.  923.  ^^  Eastman  v.  Vetter,  57  Minn.  164, 

"Hanchet  v.  Whitney,  1  Vt.  311;  58  N.  W.  989;   Currier  v.  Barker,  2 

Haley  v.    Hickman,   Litt.    Sel.   Cas.  Gray    (Mass.)     224,    227;    Grace    v. 

(Ky.)  266.  Michand,  50  Minn.  139,  52  N.  W.  390. 


§  261]  NOTICE  TO  QUIT.  296 

"The  notice  to  quit  is  technical,  and  is  well  understood;  it  fixes  a 
time  at  which  the  tenant  is  bound  to  quit,  and  the  landlord  has  a 
right  to  enter,  and  a  time  at  which  the  rent  terminates.  The  rights 
of  both  parties  are  fixed  by  it,  and  are  dependent  on  it.  Should  the 
landlord  decline  to  enter,  and  the  tenant  quit  according  to  the  notice, 
the  tenant  could  be  no  longer  holden  for  rent,  although  he  had  given 
no  notice  to  the  landlord.  The  lease  is  'determined'  by  such  notice, 
properly  given,  by  either  party.  It  is  manifest,  therefore,  that  when 
such  consequences  depend  upon  the  notice  to  be  given,  the  notice 
should  fix,  with  reasonable  exactness,  the  time  at  which  these  conse- 
quences may  begin  to  take  eSect.''^^ 

§  261.  The  time  for  quitting  must  be  on  the  day  of  the  year  when 
the  tenancy  commenced.^"  During  the  year  of  the  holding,  the  land- 
lord has  no  more  right  to  require  the  tenant  to  vacate  the  premises 
by  notifying  him  to  do  so  than  a  landlord  would  have  to  make  a 
similar  demand  during  the  term  of  a  written  lease.  The  landowner 
can  only  require  the  occupant  to  yield  up  possession  at  the  end  of 
a  year  and  after  giving  him  six  months'  warning  that  the  holding  is 
to  be  brought  to  a  conclusion.  A  notice  to  quit  at  any  period  sooner 
or  later  than  the  conclusion  of  one  of  the  periods  of  the  tenancy 
will  not  avail.^^  In  a  year  to  year  tenancy  the  notice  must  show  the 
time  when  it  is  given  and  the  time  when  the  tenancy  began,  and  with- 
out this  it  cannot  be  good.^^  A  notice  to  quit  which  breaks  into  the 
quarter,  month  or  week,  is  not  a  good  notice.  The  statutory  notice 
for  the  determination  of  an  estate  at  will,  when  the  rent  reserved  is 
payable  at  periods  of  less  than  three  months,  must  not  only  be  as  long 
as  the  interval  between  the  days  of  payment  but  must  terminate  at 
the  expiration  of  such  an  interval.^^ 

It  is  an  almost  universal  custom  to  name  the  day  corresponding 
to  the  date  of  the  letting  and  entry  of  the  tenant  as  the  time  for 
quitting  and  no  objection  seems  to  have  been  raised  to  the  sufficiency 
of  notice  on  that  ground.*^"     In  reckoning  the  conclusion  of  a  periodi- 

"  Currier     v.     Barker,     2     Gray  "  Waters  v.  Williamson,  59  N.  X 

(Mass.)  224,  227,  per  Shaw,  C.  J.  L.  337,  36  Atl.  665. 

^^Critchfield  v.  Remaley,  21  Neb.  ^Phelps  v.  Long,  9  Ired.  L.    (N. 

178,  31   N.  W.  687;   Lesley  v.  Ran-  Car.)  226. 

dolph,  4  Rawle  (Pa.)  123;  Brown  v.  ^^  Prescott  v.  Elm,  7  Cush.  (Mass.) 

Kayser,  60  Wis.  1,  18  N.  W.  523;  Bar-  346. 

low  v.  Wainwright,  22  Vt.  88;  Silsby  ""  Roe  v.  Ward,  1  H.  Bl.  97;  Doe  v. 

V.  Allen,  43  Vt.   172;    Blanchard  v.  Weller,  7  Term  R.  474;  Mills  v.  Goff,. 

Bowers,  67  Vt.  403,  31  Atl.  848.  14  M.  &  W.  72;  Doe  v.  Matthews,  11 


I 


297  SUFFICIENCY   OF   NOTICE.  [§'  261 

cal  holding,  the  day  specified  in  the  notice  to  quit  must  be  the  day 
corresponding  to  the  day  of  the  commencement  of  the  term.®^  If 
a  periodical  tenancy  expires  at  midnight  on  the  last  day  of  a  certain 
month,  should  the  notice  to  quit  specify  the  last  day  of  that  month 
or  the  first  day  of  the  next  month?  The  Supreme  Court  of  Ehode 
Island  comments  as  follows  on  this  question:  "If  we  seek  to  deduce 
a  rule  from  the  reason  of  the  thing,  we  find  that  there  are  reasons 
on  both  sides.  On  the  one  hand,  if  we  say  the  tenant  is  bound  to 
quit  previous  to  the  return  of  the  day  on  which  he  enters,  we  virtu- 
ally deprive  him  of  a  part  of  his  term;  for  he  would,  almost  neces- 
sarily, come  in  and  go  out  in  the  daytime,  and  so  would  lose  the 
earlier  part  of  the  one  and  the  later  part  of  the  other  day.  On  the 
other  hand  if  we  say  he  is  not  bound  to  quit  until  the  return  of  the 
day  on  which  he  enters,  we  give  him  time  for  which  he  pays  no  rent. 
A  rule  which  should  divide  the  day  between  the  outgoing  and  the  in- 
coming tenant,  by  making  the  term  begin  and  end  at  noon,  would 
afford  the  best  solution  of  the  difficulty.  But  such  a  rule,  in  the 
absence  of  any  usage  or  statute  establishing  it,  we  cannot  adopt. 
From  such  light  as  we  have,  we  must  determine  what  the  rule  actually 
is,  and  following  the  authorities  which  we  have  cited  and  resolving 
any  doubt  which  we  may  have  in  favor  of  the  lessee,  we  have  con- 
cluded somewhat  against  our  first  impressions,  to  uphold  the  previ- 
ous practice."  The  previous  practice  had  been  that  the  tenant  could 
not  be  required  to  leave  before  the  day  following  the  midnight  when 
his  term  came  to  an  end.**^ 

The  opposing  view  is  forcibly  stated  in  a  New  Jersey  case.  The 
court  says:  *T  think  it  would  be  carrying  the  rule  that  a  notice  to 
quit  must  be  made  with  reference  to  the  end  of  the  term  to  an  il- 
logical and  unreasonable  length  to  hold  that  a  notice  given  for  the  day 
commencing  at  that  midnight  is  not  a  good  notice.  The  law  is 
ignorant  of  fractions  of  a  day.  The  notice  covers  all  and  any  period 
of  the  twenty-four  hours  from  midnight  to  midnight.  The  very 
moment  the  tenancy  expires  the  tenant  is  confronted  with  a  notice 
to  quit.  On  what  process  of  reasoning  can  it  be  said  that  a  new  term 
has  commenced  before  notice  is  given."*'^     A  statutory  notice  to  quit, 

C.  B.  675,  73  E.  C.  L.  673;   Detroit  Durfee,  J.,  citing  Taylor's  Landlord 

Savings  Bank  v.  Bellamy,  49  Mich,  and  Tenant,  §  477;  Kemp  v.  Derrett, 

317,  13  N.  W.  606.  3  Camp.  510,  and  Ackland  v.  Lutley, 

"  Finkelstein  v.  Herson,  55  N.  J.  9  A.  &  E.  879. 

L.  217,  26  Atl.  688;  Kemp  v.  Derrett,  <"  Steffens  v.  Earl,  40  N.  J.  L.  128, 

3  Camp.  510.  136,  per  Reed,  J.     To  the  same  effect 

"-Waters  v.  Young,  11  R.  I.  1,  per  see  Petsch  v.  Biggs,  31  Minn.  392,  18 


§    362]  N-OTICE  TO   QUIT.  298 

properly  served  in  regard  to  other  requirements  as  to  time,  was  held 
not  to  be  bad  because  it  gave  the  tenant  all  of  the  first  day  of  the 
succeeding  month  in  which  to  vacate.^* 

"On  or  before"  in  a  notice  to  quit  is  common  language  of  the  law 
meaning  that  if  you  remain  one  day  after,  you  remain  at  your  peril; 
you  are  a  trespasser  and  wrongdoer.  By  serving  such  a  notice,  a 
landlord  does  not  give  the  tenant  the  privilege  of  leaving  at  once 
without  further  obligation  to  pay  rent.^^ 

§  262.  Defective  notice. — Notices  to  quit  being  informal  docu- 
ments are  liable  to  contain  errors  either  in  the  names  of  the  parties 
or  in  the  description  of  the  premises  or  in  the  wording  of  the  notice 
itself.  Slight  errors  do  not  invalidate  the  notice  and  the  governing 
principle  has  been  said  to  be  that  a  notice  to  quit  will  be  held  good 
if  it  is  so  certain  that  the  tenant  cannot  reasonably  misunderstand 
it.®"  No  particular  form  of  notice  to  quit  is  necessary.  It  shall 
be  reasonably  certain,  such  as  to  appear  to  be  a  notice  given  by  the 
landlord  and  received  by  the  tenant  and  in  such  terms  as  may  be 
understood  by  the  tenant.  A  misstatement  of  the  street  where  house 
is  situated  is  not  fatal  if  the  premises  are  located  with  reasonable 
certainty."'^  The  office  of  any  description  is  to  furnish  the  means 
of  identification  of  the  object  described  and  this  general  truth  is 
applicable  to  that  part  of  a  notice  to  quit  which  describes  the  de- 
manded premises.''^  So,  in  so  far  as  the  requirement  regarding  de- 
scription is  concerned,  a  notice  from  a  landlord  to  a  tenant  has  been 
declared  sufficient  if  it  apprise  the  latter  what  premises  are  de- 
manded.*'^ A  discrepancy  in  the  description  of  the  premises  as  given 
in  the  notice  and  in  the  complaint  was  held  not  a  material  error 
rendering  the  notice  ineffective,  when  the  testimony  was  undisputed 
that  the  thus  differently  described  premises  were  the  same  premises.'^'' 
Slight  inaccuracies  in  wording  will  not  invalidate  notices,  for  the 
courts  do  not  treat  them  in  a  technical  way.  Thus  a  notice  to  quit 
the  house  is  a  sufficient  notice  to  quit  the  land  upon  which  the  house 
stands. '^^     Where  notice  is  served  upon  a  tenant  "to  leave"  the  prem- 

N.  W.  101;  Fox  V.  Nathans,  32  Conn.  »' Congdon  v.  Brown,  7  R.  I.  19. 

348,  and  Leahy  v.  Lubman,  67  Mo.  «"  Epstein  v.  Greer,  78  Ind.  348. 

App.  191.  "^  Whipple   v.    Shewalter,   91    Ind. 

"Harris  v.   Halverson,   23  Wash.  114. 

779,  63  Pac.  549.  '"Farnam  v.  Hohman,  90  111.  312. 

•^Koehler  v.  Scheider,  16  Daly  (N.  "  Kuhn  v.  Kuhn,  70  Iowa  682,  28 

Y.)   235.  N.  W.  541. 

•^Cook  V.   Creswell,   44   Md.   581; 
McLean  v.  Spratt,  19  Fla.  97. 


299  SUFFICIENCY    OF    NOTICE.  [§§    2G3,    264 

ises  occupied  by  him,  instead  of  "to  quit,"  the  words  "to  leave"  are 
synonymous  with  "to  qujt,"  and  the  irregularity  would  not  invali- 
date the  notice.'^^  But  a  statement  by  a  lessee  from  month  to  month 
,that  he  "guessed"  he  would  have  to  give  up  the  house,  is  not  a  suf- 
ficient notice  of  an  intention  to  terminate  the  lease.'^^ 

§  263.  A  notice  to  quit  should  be  addressed  to  the  lessee  or  tenant 
in  possession  of  the  demanded  premises,  the  reason  for  this  require- 
ment being  that  the  notice  shall  come  to  his  attention.  So  a  notice 
which  was  actually  received  and  read  by  an  assignee  of  a  term  was 
valid  to  terminate  the  holding,  although  it  was  sent  after  the  assign- 
ment and  addressed  to  the  original  lessee.'^*  A  mistake  in  the  name 
of  the  tenant  upon  whom  the  notice  is  served  does  not  invalidate  it. 
In  the  case  under  consideration  there  was  no  uncertainty  as  to  the 
party  from  whom  the  notice  emanated  or  the  tenement  to  which  it 
applied,  and  there  could  have  been  no  doubt  that  it  was  meant  for 
the  family  occupying  that  tenement.  The  mistake  in  the  Christian 
name  of  the  tenant  was  therefore  of  no  importance."  A  written 
notice  of  intention  to  quit,  addressed  by  a  tenant  at  will  to  the  agent 
of  the  landlord  in  the  agent's  own  name,  was  held  sufficient  if  given 
to  and  received  by  him  as  such  agent.  If  the  person  receiving  the 
notice  was  the  agent  in  reference  to  the  leasing  of  the  building,  and 
the  notice  was  in  fact  given  to  him  by  such  agent,  and  was  so  re- 
ceived and  so  understood  by  him,  the  form  of  its  direction  would  not 
render  it  invalid."*' 

§  264.  A  formal  Insufficiency  of  a  notice  to  quit  is  waived  by  the 
tenant's  repudiation  of  the  monthly  tenancy  and  his  refusal  to  quit 
on  the  ground  that  he  has  a  tenancy  for  years  in  the  premises. '^'^  A 
tenant,  who  has  received  an  irregular  notice  to  quit,  waives  the  ir- 
regularity by  claiming  a  right  to  continue  in  possession  of  the  prem- 
ises on  another  ground.''^  If  a  tenant  chooses  to  comply  with  a 
notice  asking  him  to  vacate  a  portion  of  the  leased  premises,  he  could, 
by  so  doing,  terminate  his  liability  for  rent  to  that  extent.  But  the 
tenant  could  not  be  compelled  to  vacate  part  and  continue  the  ten- 
ancy as  to  the  balance  of  the  premises;  a  notice  to  vacate  a  part 

"Douglass  V.   Anderson,   32  Kan.  ^"  Bay    State    Bank    v.    Kiley,    14 

350,  4  Pac.  257.  Gray  (Mass.)  492. 

"  Hunter    v.    Karcher,    8    S.    Dak.  "  Drey  v.  Doyle,  28  Mo.  App.  249. 

554,  67  N.  W.  621.  '«  jjj-ey  v.  Doyle,  99  Mo.  459,  12  S. 

"  Parnam  v.  Hohman,  90  111.  312.  W.  287. 

'^  Clark  V.  Keliher,  107  Mass.  406. 


§§•  265,  266]  NOTICE  to  quit.  .     300 

would  not  justify  him  in  vacating  the  whole,  so  that  such  a  partial 
notice  would  be  ineffectual  as  a  notice  to  quit  and  would  only  serve 
to  protect  the  tenant  in  case  he  chose  to  comply  with  its  terms.'^^ 

§  265.  Authority  of  agent. — In  a  case  where  a  notice  to  quit  had 
been  signed  by  an  agent  it  was  argued  that  such  notice  was  invalid 
because  the  agent  was  not  authorized  in  writing.  The  analogy  urged 
was  to  the  execution  of  instruments  within  the  statute  of  frauds. 
But  the  court  held  the  notice  valid,  relying  on  a  statutory  provision 
to  the  effect  that  an  oral  authorization  was  sufficient  for  any  purpose, 
except  that  an  authority  to  enter  into  a  contract  required  by  law  to 
be  in  writing  can  only  be  given  by  an  instrument  in  writipg.®"  This 
statute  is  only  declaratory  of  the  common  law  and  the  principal 
case  probably  represents  the  general  law  on  the  point,  A  notice  to 
quit  is  not  instrumental  in  making  a  contract  and  therefore  is  not  to 
be  governed  by  the  rules  which  regulate  the  making  of  contracts. 
Any  requirements  as  to  form  rest  on  statutes  and  such  statutes  are 
not  to  be  extended  by  construction.  A  notice  to  quit,  which  has  been 
given  by  an  unauthorized  agent,  cannot  be  subsequently  ratified  by 
the  principal  so  as  to  be  valid  ah  initio.  Otherwise  the  principal, 
by  refusing  to  recognize  his  agent's  act,  could  hold  the  other  party 
to  his  contract;  a  notice  to  be  valid  must  bind  the  party  giving  it 
during  the  entire  time  that  the  notice  must  continue.®^ ;  Where  a 
notice  in  writing  to  quit  is  executed  by  an  agent  in  behalf  of  his 
principal,  the  ordinary  mode  of  indicating  the  agency  in  use  in  other 
written  instruments  should  be  employed.  The  general  rule  that  the 
signature  is  sufficient  if  the  relationship  is  unmistakably  indicated 
holds  true  in  regard  to  notices  to  quit.  So  a  notice  signed  A.  B. 
by  C.  D,,  "an  authorized  agent,"  was  held  sufficient  although  a  better 
form  would  be  "his  authorized  agent."® ^ 

§  266.  Who  may  give  notice  after  assignment. — In  case  a  lease- 
hold is  assigned,  notice  to  quit  may  be  given  by  the  original  lessor 
to  the  assignee  and  in  case  of  an  underletting,  the  notice  must  be  given 
either  from  the  landlord  to  the  original  lessee  or  from  the  original 

™  Alworth    v.    Gordon,    81    Minn.  v.  Goldwin,  2  A.  &  E.  (N.  S.)  143,  42 

445,  84  N.  W.  454.  E.  C.  L.  610;  Right  v.  Cuthell,  5  East 

""Felton  V.  Millard,  81  Cal.  540,  21  490,  500;   Goodtitle  v.  Woodward,  3 

Pac.    533,    22    Pac.    750,    Civ.    Code,  B.  &  Aid.  689;  Pickard  v.  Perley,  45 

§  2309.  N.  H.  188. 

"Story   on    Agency,    §§    245-246;         "  Reed  v.  Hawley,  45  111.  40, 
Doe  v.  Walters,  10  B.  &  C.  626;  Doe 


301  SUFFICIENCY   OF    NOTICE.  [§    267 

lessee  to  the  under-tenant.  So  that  a  direct  notice  from  the  landlord 
to  the  under-tenant  would  be  bad.®*  But  a  lessee  cannot  convey  a 
greater  interest  in  the  leased  premises  than  he  himself  has  and  the 
granting  of  underleases  could  not  extend  the  term  of  the  holding 
or  alter  the  contract  between  the  original  parties.®*  So  a  notice  to 
quit  served  on  the  original  lessee  in  order  to  enable  the  landlord 
to  terminate  the  tenancy  is  binding  on  under-tenants  who  acquire 
possession  from  the  tenant  after  the  service.®^ 

Where  a  lease  is  given  while  the  premises  are  in  possession  of  an- 
other under  a  tenancy,  without  attornment,  the  owner,  rather  than 
the  new  lessee,  is  the  proper  party  to  give  notice  to  quit  and  to  sue 
in  ejectment.®® 

§  267.  A  notice  to  quit  should  be  absolute  rather  than  in  the  al- 
ternative. Where  a  lease  could  be  determined  by  the  lessor  on  ten 
days'  notice,  a  demand  for  possession  accompanied  by  a  declaration 
that  if  possession  was  not  given  a  certain  rate  per  day  would  be 
charged  as  long  as  the  tenant  continues  to  occupy  the  premises,  was 
held  not  valid  as  a  notice  to  quit.®^  A  notice  to  quit  can  hardly 
be  considered  valid  which  gives  the  tenant  an  option  of  remaining 
in  possession  upon  payment  of  a  specified  increased  rent.®®  The 
doctrine,  as  thus  laid  down,  has  been  modified  to  some  extent.  Thus 
it  was  held  that  a  notice  to  quit  unless  the  tenant  complies  with 
a  certain  condition  was  not  insufiicient  if  it  gave  no  option  which 
might  be  exercised  after  the  time  fixed  by  the  notice.  So  a  notice 
to  vacate  unless  the  tenant  is  willing  to  enter  into  an  immediate 
agreement  to  pay  an  increased  rent  is  valid.®^  This  is  in  effect  what 
is  done  in  every  case  where  a  landlord  wishes  to  allow  his  tenant  from 
period  to  period  to  continue  in  possession  at  an  increased  rent.  The 
landlord  may  make  proposals  for  a  new  tenancy  upon  different  terms 
and  if  the  tenant  remain  in  possession  he  is  presumed  to  consent  to 
the  proposed  terms.  Under  such  circumstances  mere  silence  on  his 
part  will  amount  to  an  assent.®"     Where  a  tenant  refuses  to  comply 

^'Waters   v.   Roberts,   89   N.   Car.  *•  Candler  v.    Mitchell,    119    Mich. 

145.  464,  78  N.  W.  551. 

'*  See  post,  §  554.  ""  Roberts  v.  Hayward,  3  C.  &  P. 

*=  Schilling  v.  Holmes,  23  Cal.  227.  432;  Higgins  v.  Halligan,  46  111.  173; 

^''Maher  v.  Hanley  Brewing  Co.,  23  Despard  v.  Walbridge,  15  N.  Y.  374; 

R.  I.  343,  50  Atl.  392.  Reithman  v.   Brandenburg,  7   Colo. 

"'Ayres  v.  Draper,  11  Mo.  548.  480,  4  Pac.  788;   Hunt  v.  Bailey,  39 

""  D'Arcy  v.  Martyn,  63  Mich.  602,  Mo.  257. 
■'^  30  N.  W.  194. 


§  268]  NOTICE  TO  QUIT.  302 

with  a  notice  to  quit  and  continues  in  possession  against  the  will  of 
his  landlord,  he  may  still  be  charged  with  liability  for  the  amount 
of  the  rent  reserved  in  the  lease  at  the  option  of  the  landlord.^^  And 
in  a  case  where  the  notice  to  quit  came  from  the  tenant  and  the  pro- 
posal for  an  increased  rent  from  the  landlord,  continued  possession 
made  the  tenant  liable  as  on  a  new  contract.^^ 

If  the  tenant  manifests  his  dissent  from  the  terms  proposed  for 
increased  rent,  then  no  privity  of  contract  will  be  created  for  the  in- 
creased rent,  and  if  he  holds  over  it  will  be  considered  to  be  on  the 
terms  of  the  lease  by  which  he  originally  gained  possession.  In 
such  case,  the  remedy  of  the  landlord  would  be  ousting  the  tenant 
from  the  possession  under  the  statute.®^  The  rent  cannot  be  in- 
creased without  an  express  or  implied  consent  on  the  part  of  the  ten- 
ant.^* However,  dissatisfaction  with  the  proposed  new  terms  does 
not  necessarily  show  that  the  tenant  refuses  to  accept  them.  So  a 
previous  refusal  of  the  tenant  to  sign  a  lease  reserving  higher  rent 
did  not  prevent  the  court  from  inferring  his  assent  to  the  new  terms 
from  his  silence  after  receiving  notice  of  them.^^  The  nature  of 
the  transaction  as  being  the  making  of  a  new  contract  was  illustrated 
in  a  case  where  the  landlord  gave  the  alternative  notice  on  a  Sunday. 
In  holding  the  tenant  was  not  liable  for  the  increased  rent,  the  court 
said:  "I  do  not  forget  that  the  contract  was  not  completed  on  Sun- 
day. It  would  have  arisen  only  by  the  fact  that  retention  of  pos- 
session was  an  acceptance  of  the  landlord's  proposal  or  demand. 
But  in  proving  the  contract  it  was  essential  to  prove  a  business  mat- 
ter occurring  upon  Sunday.  Without  proof  of  the  notice,  the  re- 
tention of  possession  had  no  significance  whatever.  It  is  unlike  those 
cases  in  which  a  preliminary  conference  held  on  Sunday  has  been 
merged  into  a  contract  made  upon  a  secular  day.  Here  the  most 
important  circumstance  out  of  which  the  contract  grew  was  done 
upon  a  Sunday,  by  the  person  who  is  now  seeking  to  enforce  it."^® 

Mere  notice  by  a  tenant  holding  over  that  he  will  hold  under  a 
different  tenure  is  not  suiiicient  to  create  a  new  lease.^^ 

§  268.  Notice  by  parol  to  terminate  a  tenancy  from  year  to  year 
was  of  course  sufficient  at  common  law.''*    A  written  document  not 

"'  Clapp  v.  Noble,  84  111.  62.  "'  Griffin  v.  Knlsely,  75  111.  411. 

'^Tittfield  v.  Ewing,  6  Phila.  (Pa.)  ""Cannon  v.  Ryan,  49  N.  J.  L.  314, 

455.  8  Atl.  293,  per  Reed,  J. 

«^Hunt  V.  Bailey,  39  Mo.  257;  Gal-  ="  Sears  v.  Smith,  3  Colo.  287. 

loway  V.  Kerby,  9  111.  App.  501.  °'  Graham    v.    Anderson,    3    Harr. 

"Atkinson  v.  Cole,  16  Colo.  83,  26  (Del.)  364;  Haley  v.  Hickman,  Litt. 

Pac.  815.  Sel.    Cas.    (Ky.)    266;    Hanchett   v. 


303  SUFFICIEXCY    OF    NOTICE.  [§    269 

under  seal  carried  no  greater  weight  than  spoken  words  and  written 
evidence  was  only  made  necessary  by  the  statute  of  frauds,  which  did 
not  extend  this  requirement  beyond  certain  cases  of  contractual  rela- 
tion. A  notice  to  quit  served  in  no  sense  to  create  a  contractual  re- 
lation. Thus  the  removal  of  a  year  to  year  tenant  more  than  six 
months  prior  to  the  end  of  a  year,  which  removal  is  brought  to  the 
attention  of  the  landlord,  is  a  sufficient  notice  of  the  tenant's  inten- 
tion to  quit,  and  ended  the  holding  at  the  expiration  of  the  year.**^ 

However,  the  statutes  on  this  subject  almost  invariably  provide 
that  notice  shall  be  given  in  writing.  The  object  of  this  requirement 
is  twofold:  it  provides  the  tenant  with  a  convenient  reference  as  to 
his  duty  in  vacating  the  premises  and  serves  to  prevent  the  introduc- 
tion of  false  testimony  as  to  notices  which  were  never  given.  This 
requirement  means  that  the  writing  shall  be  given  to  the  party  who 
is  notified  and  not  merely  read  to  him.  The  rule  is  supported  by 
the  weight  of  authority  throughout  the  states,  that,  where  the  law 
requires  notice  in  writing,  the  reading  of  a  writing  to  the  person  to 
be  notified  is  no  compliance  with  the  requirement.^^" 

§  269.  Notices  to  and  from  joint  owners. — On  the  question  whether 
a  notice  to  terminate  a  lease  made  by  joint  tenants  or  tenants  in  com- 
mon must  come  from  all  the  joint  owners  or  not,  there  is  a  conflict 
of  authority.  It  has  been  held  that  notice  by  one  of  two  joint  lessors 
in  behalf  of  both  was  sufficient  to  terminate  the  entire  tenancy.  "The 
hardship  upon  the  tenant,  if  he  were  not  entitled  to  treat  the  notice 
from  one  as  putting  an  end  to  the  tenancy  as  to  the  whole  is  obvious; 
for  however  willing  he  might  be  to  be  sole  tenant  of  an  estate,  it  is 
not  likely  he  would  be  willing  to  hold  undivided  shares  of  it;  and  if 
upon  such  a  notice  the  tenant  is  entitled  to  treat  it  as  putting  an  end 
to  the  tenancy  as  a  whole,  the  other  joint  tenant  must  have  the  same 
right.     It  cannot  be  optional  on  one  side  only."^°^ 

The  Supreme  Court  of  New  Hampshire,  reviewing  the  case  just 
quoted  and  recognizing  its  authority,  nevertheless  reached  the  oppo- 
site conclusion. ^*^-  The  ground  of  decision  seems  to  be  that  as  each 
tenant  in  common  could  only  demise  his  own  interest  so  he  could 

Whitney,  2  Aik.   (Vt.)  240;  McLean  Williams  v.  Brummel,  4  Ark.  129; 

V.  Spratt,  19  Fla.  97.  Fitts  v.  Whitney,  32  Vt.  589. 

""Adams  v.  Cohoes,  127  N.  Y.  175,        ^"^  Doe  v.  Summersett,  1  B.  &  Ad. 

28  N.  E.  25.  135,  per  Lord  Tenterden. 

'"''  Langan  v.  Schlief,  55  Mo.  App.         ^'>-  Pickard  v.  Perley,  45  N.  H.  188, 

213;  Jenkins  v.  Jenkins,  63  Ind.  415;  citing  Doe  v.  Chaplin,  3  Taunt.  120, 

Hart  V.  Gray,  3  Sumn.  (U.  S.)  339;  and  Right  v.  Cuthell,  5  East  491. 


§   370]  NOTICE   TO    QUIT.  304 

only  end  the  tenancy  as  to  his  own  interest.  In  regard  to  the  argu- 
ment of  hardship  the  court  say:  "On  the  other  hand,  cases  might 
often  arise  where  it  would  be  for  the  interest  of  the  tenant  to  con- 
tinue to  hold  the  remaining  share,  and  where  he  would  elect  to  do 
so  if  in  his  power.  To  hold,,  then,  that  a  notice  to  quit  by  one  of 
several  lessors  must  terminate  the  entire  lease,  might  be  a  great 
hardship  to  the  tenant  as  it  might  compel  him  to  give  up  what  it 
would  be  for  his  interest  to  hold,  and  what  he  had  not  been  called 
to  surrender  by  the  owner." 

Without  regard  to  the  view  adopted  as  between  these  conflicting 
decisions,  when  the  question  is  whether  a  notice  must  be  given  to 
all  of  several  joint  owners  or  lessees  neither  of  the  arguments  in  favor 
of  such  a  requirement  will  apply.  So  it  was  held  that  a  notice  to 
quit,  given  to  one  of  two  joint  tenants,  was  sufficient.^"^  As  long  as 
one  of  the  parties  jointly  interested  knew  of  the  termination  of  the 
tenancy  there  could  be  no  hardship.  Furthermore  the  question  of 
authority  to  give  the  notice  does  not  enter  into  the  question  at  all. 
However,  it  has  been  held,  without  any  argument  or  citation  of 
authority,  that  where  there  are  two  landlords,  the  tenants'  notice 
to  quit  must  be  given  to  each  of  them  separately.^"* 

§  270.  The  requirements  for  notice  to  quit  may  be  waived  by 
agreement  between  the  parties.  This  holds  true  in  all  cases  where 
notice  to  quit  is  necessary  and  without  distinction  as  to  whether  the 
tenancy  is  strictly  at  will,^"^  or  from  year  to  year.^°^  There  seems 
to  be  no  reason  why  a  general  waiver  would  not  be  valid  and  binding 
upon  the  familiar  doctrine  of  estoppel  and  a  specific  waiver  of  notice 
at  the  end  of  a  definite  period  could  be  supported  on  the  same  ground. 
An  agreement  that  a  tenant  at  will  may  leave  the  premises  at  pleasure 
and  at  a  moment's  notice  is  valid  and  relieves  the  tenant  from  giv- 
ing the  notice  mentioned  in  the  statute.^°^ 

However,  in  one  case  it  was  said  that  such  an  agreement  changed 
the  tenancy  at  will  into  one  for  a  fixed  term.  The  reciprocal  sur- 
render of  rights  constituted  a  consideration  on  each  side  of  the  agree- 

^"^  Glenn  v.  Thompson,  75  Pa.  St.  Seaman,  46  Mich.  74,  8  N.  W.  711; 

389.  Farson  v.  Goodale,  8  Allen  (Maes.) 

^•^  Bless  V.  Jenkins,  129  Mo.  647,  31  202. 

S.  W.  938;  Long  v.  Bolen  Coal  Co.,  "«Lane  v.  Ruhl,  94  Mich.  474,  54 

56  Mo.  App.  605.  N.  W.  175;   Graham  v.  Anderson,  3 

^"'Betz  V.  Maxwell,  48  Kan.  142,  29  Harr.  (Del.)  364. 

Pac.    147;    Engels    v.    Mitchell,    30  "^  Davis  v.  Murphy,  126  Mass.  143. 
Minn.  122,  14  N.  W.  510;  Moody  v. 


305  SUFFICIENCY   OF   NOTICE.  [§    370 

ment  and  notice  became  unnecessary,  because  there  was  an  agreed 
time  for  the  termination  of  the  tenancy  and  notice  was  always  dis- 
pensed with  in  such  cases."^ 

In  respect  to  what  constitutes  a  waiver,  a  distinction  has  been  drawn 
between  a  specific  agreement  to  waive  notice  and  the  mere  circum- 
stances that  the  duration  of  the  term  is  left  indefinite.  In  a  case 
of  this  kind,  where  the  court  held  there  was  no  waiver,  it  was  said : 
*'It  is  true  that  the  tenant  was  privileged  to  vacate  at  any  time,  the 
term  thus  being  made  indefinite  instead  of  fixed;  but,  as  before 
stated,  this  was  not  an  agreement  to  waive  the  statutory  notice.  It 
determined  the  character  of  the  lease  and  the  nature  of  the  tenancy, 
nothing  more.  To  do  away  with  the  notice  when  the  tenancy  is  at 
will,  an  agreement  that  notice  need  not  be  given  is  necessary ."^^'^ 

By  accepting  possession  after  tenant  has  abandoned  the  premises, 
a  landlord  waives  the  requirement  for  a  notice  to  quit  and  can  recover 
rent  only  to  the  time  he  resumed  possession.^^^  But  the  acceptance 
of  possession  is  a  matter  of  intention  and  slight  acts  by  the  landlord 
do  not  prevent  him  from  holding  the  tenant  liable  for  rent.  Thus 
a  landlord  did  not  waive  his  right  to  notice,  and  accept  the  premises, 
by  going  into  the  rented  house  with  a  person  who  had  been  sent  by 
the  tenant  to  remove  articles  left  there  by  him,  or  by  entering  after- 
ward, as  cold  weather  approached,  to  see  that  the  water  was  properly 
turned  off.^^^ 

Parties  might  create  an  estate  at  will,  which  should  terminate  by 
its  own  limitation  upon  the  contingency^^^  of  a  failure  by  the  tenant 
to  pay  the  rent  quarterly  in  advance/^^  But  no  such  intention  can 
be  inferred  from  a  mere  agreement  by  the  tenant  to  pay  rent  quarterly 
in  advance.  So  failure  to  pay  rent  would  not  enable  the  landlord 
to  maintain  the  summary  process  provided  by  statute,  without  giv- 
ing a  valid  notice  under  the  statute.^^'*  A  fortiori,  the  tenant  can- 
not treat  the  tenancy  as  terminated  by  reason  of  his  failure  to  comply 
with  his  agreement  to  pay  rent  in  advance.  A  mere  agreement  to 
pay  rent  in  advance  is  not  a  condition  precedent  to  the  vesting  of 

"« Engels  V.  Mitchell,  30  Minn.  122,  "^  Finch  v.  Moore,  50  Minn.  116,  52 

14  N.  W.  510.  N.  W.  384. 

"''  Paget  V.  Electrical  &c.   Co.,  82  "=  See  supra,  §  114. 

Minn.  244,  246,  84  N.  W.  800,  per  Col-  "^  Elliott  v.  Stone,  1  Gray  (Mass.) 

lins,  J.  571. 

"» Vegely  v.  Robinson,  20  Mo.  App.  "*  Elliott     v.     Stone,     12     Cush. 

199.  (Mass.)  174. 

Jones  L.  &  T.— 20 


1 

§§  271,  272]  NOTICE  TO  QUIT.  306 

the  estate.     So  such  an  agreement  does  not  give  a  tenant  at  will  a 
right  to  leave  without  giving  the  statutory  notice  to  quit.^^^  J| 

§  271.  Enforcement  of  notice. — A  valid  notice  to  quit,  well  served, 
may  be  waived  by  the  subsequent  conduct  of  the  parties,  so  that  the 
right  to  end  the  tenancy,  once  acquired,  is  lost.  This  is  the  effect  of 
accepting  rent.  Acceptance  of  rent  accruing  after  the  expiration  of 
a  notice  to  quit  is  a  waiver  of  the  notice. ^^^  The  tenancy  is  recog- 
nized as  still  subsisting.  Another  act  having  the  same  effect  is  the 
service  of  a  second  notice  to  quit.  Giving  a  second  notice  after  the 
expiration  of  the  first  is,  in  effect,  an  admission  that  a  tenancy  still 
subsists,  and  is  a  waiver  of  the  first  notice.  Upon  receiving  the 
second  notice,  the  tenant  unquestionably  had  the  right  to  suppose 
that  the  landlord  had  waived  the  first  notice  and  that  the  tenancy 
would  continue  until  the  time  fixed  in  the  last  notice  and  act  accord- 
ingly.^^^  Similarly,  a  second  notice  from  the  grantee  of  a  lessor 
waives  a  former  one  which  was  given  by  the  lessor  himself.^^^  How- 
ever, the  doctrine  of  waiver  would  not  be  carried  to  such  an  extent 
that  it  will  be  presumed  from  a  mere  reminder  to  the  tenant  to  quit 
at  a  time  agreed  upon.  This  was  the  effect  of  a  second  notice  which 
set  the  same  time  for  the  termination  of  the  tenancy  that  had  been 
previously  agreed  upon.  There  was  no  recognition  of  the  tenancy 
as  still  subsisting  after  the  time  when  it  was  to  terminate  by  the  first 
notice.^^^  Service  of  a  notice  to  quit  upon  a  tenant  at  will  upon 
which  no  action  is  taken  by  either  party  for  several  years  does  not 
affect  the  relation  of  the  parties.  ^^^  But  a  parol  permission  to  re- 
main a  few  days  after  the  expiration  of  the  period  fixed  by  a  notice 
to  quit  is  not  necessarily  a  waiver  of  that  notice.^^^ 

III.     Service  of  Notice.  M 

§  272.  Personal  service  of  a  notice  to  quit  upon  a  tenant  is  not 
necessary.^-^     Such  a  notice  is  not  legal  process.^^^     The  reason  for 

"''Sprague    v.    Quinn,    108    Mass.         "« O'Neill    v.     Cahill,     2     Brewst. 

553;     Hilsendegen    v.     Scheich,     55  (Pa.)  357. 
Mich.  468,  21  N.  W.  894.  "'  Moody  v.  Seaman,  46  Mich.  74,  8 

""  Collins     V.      Canty,      6      Gush.  N.  W.  711. 
(Mass.)  415.  "^o  Newell  v.  Sanford,  13  Iowa  191. 

"'Dockrill  v.  Schenk,  37  111.  App.         ^=' Babcock     v.     Albee,     13     Mete. 

44;   Morgan  v.  Powers,  31  N.  Y.  S.  (Mass.)  273. 

954;  Brierly  V.  Palmer,  16  East  53;         "=  Doe   v.    Gray,   2   Houst.    (Del.) 

D'Arcy  v.  Martyn,  63  Mich.  602,  30  135;  Jones  v.  Marsh,  4  Term  R.  464. 
N.  W.  194.  ^'  Weeks  v.  Sly,  61  N.  H.  89. 


307  SERVICE  OF   NOTICE.  [§'  273 

requiring  notice  at  all  is  to  warn  the  other  party  of  the  termination 
of  the  tenancy  and  thus  prevent  inconvenience  and  loss.  If  the  ten- 
ant has  actual  knowledge,  the  object  of  the  notice  is  accomplished. 
So  it  has  been  declared  that  a  notice  of  this  nature  may  be  served 
on  the  tenant,  whether  on  or  off  the  premises,  or  if  he  cannot  be 
found,  upon  some  one  of  proper  age  residing  on  the  premises.^-* 
"As  a  general  rule  any  mode  of  serving  a  notice  to  quit  is  sufficient 
where  it  can  be  traced  to  the  hands  of  the  party  for  whom  it  was  in- 
tended in  due  time.  Wlienever  the  service  upon  the  party  in  per- 
son is  practicable,  it  should  be  the  mode  adopted,  but  in  the  absence 
of  the  tenant  the  notice  may  and  should  be  served  in  the  mode  best 
calculated  to  reach  him.''^-*' 

It  is  a  sufficient  service  of  the  notice  to  leave  it  at  his  house 
on  the  premises  with  his  wife  in  the  absence  of  the  tenant  from 
home.^-^  Service  was  well  made  when  the  notice  was  given  to  a 
sister  of  tenant  on  the  premises  after  tenant  had  been  seen  but  had 
shut  himself  up  in  a  room.^-''  Service  upon  the  tenant's  husband  upon 
the  premises  is  also  sufficient.^^**  The  service  of  a  notice  to  ter- 
minate a  tenancy  at  will  upon  an  agent  having  charge  and  manage- 
ment of  his  principal's  business  with  reference  to  the  tenancy  is  as 
effective  as  service  upon  the  principal  himself. ^^^  But  it  was  held 
not  to  be  a  good  service  of  a  notice  to  quit  to  leave  it  at  the  lessee's 
house  off  the  demised  premises  with  some  one  not  an  agent  of  the  les- 
see or  a  member  of  his  family."^ 

§  273.  In  England  a  notice  to  quit  left  with  the  servant  or  wife 
of  the  tenant  of  the  premises  is  not  well  served  unless  the  contents  of 
the  message  is  explained  to  the  person  receiving  it.^^*  It  was  ruled 
in  an  early  case  that  "The  mere  leaving  of  a  notice  to  quit  at  the 

^=' Epstein  v.  Greer,   78   Ind.  348;  App.  251;   Hazeltine  v.  Colburn,  31 

Steese  v.  Johnson,  168  Mass.  17,  46  N.    H.    466;    Clark   v.    Keliher,    107 

N.  E.  431;  Doe  v.  Dunbar,  Mood.  &  Mass.  406. 

M.  10;  Roe  v.  Street,  2  A.  &  E.  329;  i^"  McSloy  v.  Ryan,  27  Mich.  110. 

Doe  v.  Ongley,  10  C.  B.  25,  70  E.  C.  ""  Cook  v.  Creswell,  44  Md.  581. 

L,  25.  "^  Prendergast  v.  Searle,  81  Minn. 

^^"Alworth    V.    Gordon,    81    Minn.  291,  84  N.  W.  107. 

445,  453,  84  N.  W.  454,  per  Start,  C.  ''^  Hpdgkins  v.  Price,  137  Mass.  13. 

J.;  Van  Studdiford  v.  Kohn,  46  Mo.  "*  Doe  v.  Dunbar,  Mood.  &  M.  10; 

App.  436.  Roe  v.  Street,  2  A.  &  E.  329;  Doe  v. 

^^'Blish      V.      Harlow,      15      Gray  Ongley,  10  C.  B.  25,  34,  70  E.  C.  L. 

(Mass.)  316;  Doe  v.  Gray,  2  Houst.  25;  Smith  v.  Clark,  9  Dowl.  202. 
(Del.)  135;  Beiler  v.  Devoll,  40  Mo. 


§  274]  NOTICE  TO  QUIT.  308 

tenant's  house,  without  further  proof  of  its  being  delivered  to  a  ser- 
vant and  explained,  or  that  it  came  to  the  tenant's  hands,  is  not  suf- 
ficient to  support  an  ejectment."^^^  But  the  service  was  adequate 
where  it  was  proved  that  the  notice  was  delivered  to  the  tenant's  ser- 
vant at  the  dwelling  house  of  the  tenant,  off  the  premises,  and  its  con- 
tents were  explained  at  the  time."'^  However,  it  has  been  suggested 
that  no  such  distinction  exists  in  this  country.^^^  Still  the  landlord 
must  adopt  the  best  reasonable  means  within  his  power  to  bring  per- 
sonal knowledge  of  the  notice  home  to  the  tenant.  So  it  was  held  that 
leaving  a  notice  to  vacate  a  farm  with  the  servant  in  a  city  boarding 
house  where  the  tenant  boarded  was  not  a  sufficient  service.  The  ten- 
ant or  his  wife  could  have  been  found  by  inquiry.^^^  This  question 
was  presented  to  the  Supreme  Court  of  Massachusetts  in  a  case  where 
a  leased  shop  was  left  in  charge  of  a  partner  of  the  tenant  and  the 
notice  to  quit  was  served  on  such  partner.  Justice  Gray,  speaking  for 
the  court,  said:  "And  upon  principle,  it  would  seem  that  a  notice 
delivered  to  an  authorized  agent  upon  the  premises  would  be  quite 
as  likely  to  reach  the  tenant,  or  to  be  attended  to  if  he  did  receive  it 
in  person,  as  a  notice  given  to  one  of  his  family  or  household  at  his 
dwelling  house  in  his  absence.  .  .  .  Under  these  circumstances 
the  mode  of  service  adopted,  if  not  the  only  one  practicable  for  the 
landlord,  was  clearly  the  most  beneficial  to  the  tenant  and  must  be 
held  sufficient."^*" 

§  274.  Service  of  a  notice  by  mail  so  as  to  cast  upon  the  tenant 
the  risk  of  receiving  it  is  not  authorized ;  yet  if  such  mode  of  service 
is  adopted  and  it  is  actually  received  by  the  tenant  within  the  required 
time  it  is  sufficient.^*^  In  supporting  its  decision  that  such  a  mode  of 
service  was  good  the  Minnesota  court  said:  "While  the  plaintiff,  in 
this  case  was  not  authorized  to  serve  the  notice  by  mail,  so  as  to  cast 
upon  the  defendant  the  risk  of  receiving  it,  yet  if  the  notice  was  de- 
livered to  and  received  by  him  within  the  required  time  it  is  imma- 
terial whether  it  was  delivered  to  him  by  the  postman  or  any  other 
agency;  for  the  essential  thing  is  that  he  received  the  notice  in  due 


^^^  Doe  V.  Lucas,  5  Esp.  153.  "°  Walker  v.  Sharpe,  103  Mass.  154, 

"'  Jones  v.  Marsh,  4  Term  R.  464.  156. 

"'De  Giverville   v.   Stolle,   9   Mo.  "^Candler  v.   Mitchell,   119   Mich. 

App.  185.  464,  78  N.  W.  551;   Alworth  v.  Gor- 

""  De   Giverville  v.   Stolle,   9   Mo.  don,  81  Minn,  445,  84  N.  W.  454. 
App.  185. 


309  SERVICE  OF  NOTICE.  [§§'  275,  276 

time.  When  the  plaintiff  selected  the  mail  as  the  agency  for  delivering 
the  notice  to  the  defendant  he  took  the  risk  of  its  coming  into  his  hands 
in  due  time.  We  hold  the  service  of  the  notice  good  in  this  case  upon 
the  sole  ground  that  it  was  actually  delivered  to  the  defendant  within 
the  required  time."^*^  In  another  case  where  this  question  was  raised, 
the  court  ventured  the  comment  that  service  by  mail  would  doubtless 
have  been  good  had  the  letter  addressed  to  the  tenant  through  the  mail 
been  stamped ;  but  as  there  was  no  evidence  that  this  was  done  there 
was  no  prima  facie  evidence  of  service  of  notice  on  the  tenant.^'*^ 

Where  it  is  allowed  by  statute  that  a  three  months'  notice  in  writing 
to  terminate  a  tenancy  can  be  served  by  mailing,  it  is  essential  that  it 
be  received  three  months  before  the  end  of  the  term,  as  well  as  mailed 
that  length  of  time  before.  It  makes  no  difference  that  the  landlord 
is  a  non-resident  of  the  state.^** 

A  tenant  at  will  sent  to  his  landlord's  office  a  notice  to  determine 
the  tenancy.  The  office  door  was  closed  and  had  on  it  a  placard  re- 
questing letters  to  be  put  in  a  box  near  by.  The  notice  was  put  in  the 
box  and  the  landlord  found  it  there  the  next  day.  The  court  were  of 
opinion  that  dropping  the  notice  in  the  box  was  not  a  proper  service 
on  the  landlord,  and  that  it  would  take  effect  only  from  the  time  it 
was  actually  received.^*^ 

§  275.  Service  by  posting. — Ordinarily  a  notice  to  quit  should  be 
delivered  into  the  hands  of  somebody  and  not  merely  left  at  the 
house.^**'  But  statutes  in  regard  to  notice  frequently  provide  for  the 
service  upon  tenants  who  have  abandoned  the  premises  by  posting. 
The  usual  requirement  is  that  the  notice  be  posted  in  a  conspicuous 
place  on  the  premises  and  a  copy  mailed  to  the  tenant.  Where  service 
may  be  made  by  posting  the  notice  to  a  door  on  the  premises  when  they 
have  been  abandoned,  it  is  not  objectionable  to  have  the  premises  de- 
scribed as  "now  occupied  by  you,"  for  that  is  merely  following  out  the 
statutory  form  of  notice,  ^*'^ 

§  276.  Proof  of  service. — Since  a  notice  to  quit  does  not  in  any 
way  partake  of  the  nature  of  a  process  issuing  out  of  a  court  of  law, 

'*=^  Alworth    V.    Gordon,    81    Minn.  "^  May  v.  Rice,  108  Mass.  150 

445,  453,  84  N.  W.  454,  per  Start,  C.  J.  »« Hazeltine  v.  Colburn,  31  N.  H. 

^*^  Bless  V.  Jenkins,  129  Mo.  647,  31  466. 

S.  W.  938,  citing  Briggs  v.  Hervey,  "'  Consolidated  Coal  Co.  v.  Schaef- 

130  Mass.  186.  er,  135  111.  210,  25  N.  E  788. 

'"  Roberts    v.     Grubb,     5     Houst. 
(Del.)  461. 


§§  277,  278]  NOTICE  to  quit.  310 

code  provisions  applying  only  to  notices  given  in  judicial  proceedings 
have  no  bearing  on  the  question  of  service.  The  service  of  such  notices 
must  therefore  be  proved,  as  any  other  fact  essential  to  the  cause  of 
action,  and  parol  testimony  is  admissible  for  the  purpose.^**  The 
matter  has  been  aptly  summed  up  in  a  recent  case  of  WeeTcs  v.  Sly,^*^ 
where  the  court  say :  "The  notice  is  not  a  legal  process  issuing  out  of 
court,  directed  to  an  officer  and  to  be  served  by  him.  Proof  of  service 
may  be  made  by  any  one  who  has  knowledge  of  the  fact.^^**  The  evi- 
dence of  the  person  making  the  service,  given  in  court  in  a  suit  be- 
tween the  parties,  with  an  opportunity  to  the  tenant  for  cross-examina- 
tion, is  competent  evidence  to  prove  the  fact  of  service.  Whether  an 
ex  parte  affidavit  on  a  copy  of  the  notice  would  be  competent  evidence, 
we  have  no  occasion  to  inquire." 

lY.     Statutory  Provisions. 

In  a  very  large  proportion  of  the  states  the  requirements  as  to  notice 
necessary  to  end  a  tenancy  are  to  a  greater  or  less  extent  regulated  by 
statute.  The  statutes  on  this  subject  are  uniform  in  purpose  but  vary- 
ing in  phraseology.  A  brief  summary  of  the  law  of  notice  in  the 
different  states,  as  created  by  statute  and  judicial  decision,  is  here 
given,  as  the  topic  is  too  important  to  be  omitted,  and  can  be  dealt 
with  adequately  in  no  other  way. 

§  277.  Alaska. — Where  tenant  refuses  to  pay  rent  or  holds  over 
after  the  termination  of  his  lease  or  agreement,  he  is  guilty  of  unlawful 
holding  after  written  notice  to  quit  has  been  served  on  him.  The 
period  of  the  notice  is  ten  days,  except  in  the  case  of  farming  land,  in 
which  case  it  must  be  served  for  a  period  of  ninety  days.^^^ 

§  278.  Arizona, — Tenancies  from  year  to  year  shall  terminate  at 
the  end  of  every  year,  unless  a  written  permission  shall  be  given  for 
said  tenant  to  remain  for  a  longer  period ;  and  permission  so  given  shall 
specify  the  date  till  which  the  tenant  may  remain.  Any  lease  from 
month  to  month  shall  be  terminated  by  the  landlord  giving  at  least 
ten  days'  previous  notice  of  the  termination  of  such  lease.  A  tenant 
holding  possession  against  the  will  of  his  landlord  shall  not  be  con- 

"' Chung  Yow  v.  Hop  Chong,  11         ""Citing  2  Greenl.  Ev.,  §  322. 
Ore.  220,  4  Pac.  326.  '■'  Carter's      Annotated       Alaskan 

"^  Weeks  v.  Sly,  61  N.  H.  89.  Codes,  Part  IV,  1025,  1026,  1027. 


311  STATUTORY   PROVISIONS.  [§§    279,   280 

sidered  a  tenant  at  will  or  by  sufferance.     No  notice  is  necessary  to 
terminate  a  lease  for  a  definite  time.^^^ 

§  279.  Arkansas.— There  are  no  statutes  regulating  the  length  of 
notice  required  to  terminate  periodical  tenancies,  and  the  courts  are 
therefore  governed  by  the  common-law  rule.  This  fixes  the  length  of 
the  notice  at  six  months  in  tenancies  from  year  to  year.  But  when 
the  recurring  periods  are  for  less  than  a  year,  the  length  of  notice  must 
be  for  the  full  time  of  the  periodical  term.  Thus  to  end  a  tenancy 
from  month  to  month  thirty  days'  notice  is  necessary,  and  notice  given 
fifteen  days  before  the  expiration  of  the  term  is  not  sufficient.'^^ 
Thus  it  was  obvious  that  a  ten  days'  notice  was  not  a  reasonable  one 
to  terminate  a  tenancy  from  year  to  year.^' 


154 


§  280.  California. — "A  tenancy  or  other  estate  at  will,  however 
created,  may  be  terminated  by  the  landlord's  giving  notice  in  writing 
to  the  tenant  ...  to  remove  from  the  premises  within  a  period 
of  not  less  than  one  month,  to  be  specified  in  the  notice."^^^  This 
notice  should  be  served  by  delivering  a  copy  to  the  tenant  personally ; 
or  if  he  be  absent,  by  leaving  a  copy  to  some  person  of  suitable  age  and 
discretion  and  mailing  a  copy  to  the  tenant;  or  if  the  tenant's  where- 
abouts cannot  be  found,  by  leaving  a  notice  with  the  person  residing 
on  the  premises  and  posting  a  copy  on  a  conspicuous  place  on  the 
premises,  and  also  sending  a  copy  through  the  mail  to  the  tenant.^^^ 
Ee-entry  can  only  be  made  by  the  landlord  after  three  days'  notice, 
given  subsequently  to  the  termination  of  the  tenancy.  The  action  of 
unlawful  detainer  "cannot  be  maintained  to  recover  possession  from 
tenants  at  will  without  first  terminating  the  tenancy  by  giving  at  least 
thirty  days'  notice  in  writing,  and  after  the  termination  of  the  tenancy 
three  days'  notice  in  writing  to  surrender  the  possession;  and  these 
things  must  be  made  to  appear  by  express  averments  in  the  com- 
plaint."^"  The  death  of  the  landlord  terminates  a  tenancy  at  will, 
and  thereafter  his  heirs  may  maintain  ejectment  without  previously 
serving  a  notice  to  quit  or  demanding  possession  of  the  tenant.^^^  An 
adverse  claim  of  title  also  precludes  the  tenant  from  setting  up  his 

1"  Rev.  St.  1901,  §  2694.  i=«  Code  of  Civil  Procedure,  §  1162. 

"=  Stewart  v.  Murrell,  65  Ark.  471,  i"  Martin  v.  Spllvalo,  56  Cal.  128; 

47  S.  W.  130.  King  v.  Connolly,  51  Cal.  181;  Smith 

1'*  Bromley  v.  Aday,   70  Ark.  351,  v.  Hill,  63  Cal.  51. 

68  S.  W.  32.  158  Joy  ^    McKay,  70   Cal.   445    11 

"^  Civil  Code,  §§  789,  791.  Pac.  763. 


§§  281,  282]  NOTICE  TO  QUIT.  312 

right  to  have  the  prescribed  statutory  notice  to  quit.^^^  Moreover, 
where  a  tenant  at  will  assigns  his  term  he  terminates  the  will,  and  his 
assignee  becomes  a  tenant  at  sufferance,  who  is  not  entitled  to  receive 
a  notice  to  quit.^®"  Wherever  a  landlord  is  entitled  to  bring  an  action 
of  forcible  detainer  against  a  tenant  at  sufferance,  having  given  the 
requisite  notice  to  quit,  he  may,  instead  of  proceeding  in  that  action, 
bring  ejectment.^^^ 

§  281.  Colorado. — In  all  cases  of  tenancy  from  year  to  year,  the 
same  may  be  terminated  by  notice  in  writing  to  quit,  duly  served  three 
months  prior  to  the  end  of  the  year;  a  six  months'  tenancy  may  be 
terminated  by  service  of  a  similar  notice  of  one  month;  a  monthly 
tenancy  may  be  terminated  by  a  similar  notice  of  ten  days ;  a  tenancy 
at  will  may  be  terminated  by  a  similar  notice  of  three  days ;  such  notice 
shall  describe  the  premises,  the  particular  time  when  the  tenancy  will 
terminate,  and  be  signed  by  the  party  giving  the  notice.  When  the 
term  is  certain,  no  notice  to  quit  is  necessary.  Notice  shall  be  served 
by  delivering  a  copy  to  the  tenant  or  some  person  on  the  premises. 
Posting  is  allowable  when  the  premises  are  vacant.^"^  Where  a  tenant 
goes  into  possession  without  any  agreement  as  to  the  time  for  holding, 
and  the  rent  reserved  is  payable  monthly,  the  tenancy  is  from  month 
to  month.  It  could  be  determined  by  a  notice  ten  days  prior  to  the 
end  of  the  month.^®^  But  a  monthly  tenant  cannot  claim  the  right 
of  ten  days'  statutory  notice  to  quit  where  he  has  refused  to  attorn,  and 
has  offered  to  leave  and  does  so.^*** 

§  282.  Connecticut. — A  lessor  desiring  to  recover  possession  of 
leased  premises  shall  give  notice  to  the  lessee  to  quit  possession  at  least 
ten  days  before  the  termination  of  the  lease  or  before  the  time  specified 
in  the  notice  for  the  lessee  to  quit.  A  duplicate  copy  of  the  notice 
should  be  delivered  to  the  lessee  or  left  at  his  place  of  residence  by  an 
indifferent  person.  If  the  lessee  fails  to  comply  with  the  notice  a  com- 
plaint in  summary  process  may  be  brought  before  a  justice  of  the  peace. 
The  ten  days'  notice  to  quit  may  be  waived  in  any  written  lease.^^^ 
Parol  leases  for  one  year  or  less  are  valid. ^*^®     Where  a  oarol  lease  re- 

"°  Simpson  v.   Applegate,   75   Cal.  ^'^  Edmundson  v.  Preville,  12  Colo. 

342,  17  Pac.  237.  App.  73,  54  Pac.  394. 

^^  McLeran  v,  Benton,  73  Cal.  329,  '"  Salomon   v.   O'Donnell,   5   Colo. 

14  Pac.  879.  App.  35,  36  Pac.  893. 

"1  McCarthy  v.  Yale,  39  Cal.  585.  ^«  Gen.  Laws  1902,  1078,  1079. 

"2  Mills  Ann.  St.  of  Colo.,  §§  1976,  ^««  Gen.  Laws  1902,  1089. 
1977. 


313  STATUTORY   PKOVISIONS.  [§§'   283-285 

serves  rent  to  be  paid  at  stated  periods,  and  such  rent  remains  unpaid 
nine  days  after  it  is  due,  such  lease  shall,  at  the  option  of  the  lessor  and 
on  notice  thereof  to  the  lessee,  expire  and  terminate.^"  Month  to 
month  and  year  to  year  tenancies  still  exist  in  this  state,  but  the  com- 
mon-law doctrine  of  notice  was  never  adopted  to  its  full  extent.  Judge 
Ellsworth  explains  this  in  an  early  case,i«8  saying :  "Our  statute  gives 
the  landlord  in  every  case  of  holding  over,  a  right  and  the  remedy  to 
regain  possession  in  thirty  days.  This  statute  has  ever  been  held  in 
Connecticut  to  do  away  with  the  rule  of  six  months^  notice." 

§  283.  Delaware. — Unless  three  months'  notice  by  either  landlord 
or  tenant  is  given  prior  to  the  end  of  a  fixed  term,  the  term  shall  be 
extended  for  another  year,  and  all  the  stipulations  of  the  demise  shall 
continue  in  force."»  There  is  no  qualification  or  distinction  between  a 
resident  and  a  non-resident  landlord  in  the  provision  of  this  statute."** 

§  284.  District  of  Columbia.— When  real  estate  is  leased  for  a  cer- 
tain term  no  notice  to  quit  shall  be  necessary.  A  tenancy  from  month 
to  month  or  from  quarter  to  quarter  may  be  terminated  by  a  thirty 
days'  notice  in  writing  from  either  landlord  or  tenant,  said  notice  to 
expire  on  the  day  of  the  month  from  which  such  tenancy  commenced 
to  run.  A  tenancy  at  will  may  be  terminated  by  thirty  days'  notice  in 
writing  by  either  landlord  or  tenant.  A  tenancy  at  sufferance  may  be 
terminated  at  any  time  by  notice  in  writing  from  either  landlord  or 
tenant,  to  take  effect  on  the  thirtieth  day  after  the  day  of  the  service 
of  the  notice.  If  such  notice  expires  before  any  periodical  installment 
of  rent  falls  due,  the  landlord  shall  be  entitled  to  a  proportionate  part 
of  such  installment.  Notice  should  be  served  on  tenant  personally  if 
he  can  be  found,  otherwise  it  is  sufficient  service  to  deliver  the  notice 
to  some  person  of  proper  age  upon  the  premises,  and  in  the  absence  of 
such  tenant  or  person  it  is  sufficient  to  post  the  notice  in  a  conspicuous 
place  upon  the  leased  premises.^^^ 

§  285.  Georgia. — "Two  months'  notice  is  necessary  from  the  land- 
lord to  terminate  a  tenancy  at  will.  One  month's  notice  is  necessary 
from  the  tenant."" ^  Where  a  tenant  was  to  hold  for  an  uncertain 
period,  to  be  determined  upon  the  happening  of  a  contingency,  he  was 

'''  Gen.  Laws  1902,  4044.  "o  Roberts    v.     Grubb,     5     Houst 

"^'Larkin  v.  Avery,  23  Conn.  304,  (Del.)  461. 
317,  citing  1  Sev.  Dig.,  95  Dul.  ed.  "» Code  1902,  §§  1218-1223. 

"^  Laws  of  Delaware  1893,  ch.  120,         "^  Code  1895,  Vol.  II,  §  3133. 
§  4. 


§§   268-388J  NOTICE  TO   QUIT.  '314: 

entitled  to  reasonable  warning  after  the  event  happened  before  being 
required  to  vacate.  ^'^^  A  person  entering  under  a  contract  for  a  lease 
was  held  to  become,  on  refusing  to  execute  the  lease,  a  tenant  at  will 
who  could  be  evicted  on  two  months'  notice.^'* 

§  286.     Idaho. — "A  tenancy  or  other  estate  at  will,  however  created, 

may  be  terminated  by  the  landlord's  giving  notice  in  writing  to  the 
tenant  to  remove  from  the  premises  within  a  period  of  not  less  than 
one  month,  to  be  specified  in  the  notice."  "After  such  notice  has  been 
served,  and  the  period  specified  by  such  notice  has  expired,  but  not  be- 
fore, the  landlord  may  re-enter  or  proceed  according  to  law  to  recover 
possession."^"  In  all  leases  from  month  to  month  the  landlord  may, 
upon  giving  notice  in  writing  at  least  fifteen  days  before  the  expiration 
of  the  month,  change  the  terms  of  the  lease,  to  take  effect  at  the  expira- 
tion of  the  month.^^®  Service  of  notice  may  be  on  the  tenant  in  person 
or  by  leaving  it  at  his  residence,  between  the  hours  of  eight  in  the 
morning  and  six  in  the  evening,  with  some  person  of  suitable  age  and 
discretion.  If  the  tenant's  residence  be  not  known,  notice  may  be 
enclosed  in  an  envelope  and  put  into  the  postoffice,  directed  to  him.^'^^ 

§  287.  Illinois. — "^Vllen  the  tenancy  is  for  a  certain  period  and 
the  term  expires  by  the  terms  of  the  lease,  the  tenant  is  then  bound  to 
surrender  possession,  and  no  notice  to  quit  or  demand  for  possession  is 
necessary."  "In  all  cases  of  tenancy  from  year  to  year  sixty  days' 
notice  in  writing  shall  be  sufficient  to  terminate  the  tenancy  at  the  end 
of  the  year.  The  notice  may  be  given  at  any  time  within  four  months 
preceding  the  last  sixty  days  of  the  year."  "In  all  cases  of  tenancy  by 
the  month  or  for  any  other  term  less  than  one  year  where  the  tenant 
holds  over  without  special  agreement,  the  landlord  shall  have  the  right 
to  terminate  the  tenancy  by  thirty  days'  notice,  in  writing,  and  to 
maintain  an  action  for  forcible  detainer  or  ejectment."  Service  may 
be  made  by  delivering  a  copy  of  the  notice  to  the  tenant,  or  by  leaving 
such  copy  on  the  premises  with  some  one  above  the  age  of  twelve  years, 
or  by  posting  a  copy  on  unoccupied  premises.  The  oath  of  the  person 
serving  a  notice  is  prima  facie  evidence  of  the  facts  stated  therein.^^^ 

§  288.  Indiana. — "Estates  at  will  may  be  determined  by  one 
month's  notice,  in  writing,  delivered  to  the  tenant."^^^     Under  this 

^"  Sloat  v.  Rountree,  87  Ga.  470,  13         ""  Civil  Code  1901,  §  2384. 
S.  E.  637.  '■'  Code  Civ.  Procedure,  §  3711. 

"*Weed  V.  Lindsay,  88  Ga.  686,  15        "^Rev.  St.  1903,  ch.  80,  §§  5,  6,  10, 

S.  E.  836.  11,  12. 

"=  Civil  Code  1901,  §§  2373,  2374.  "*  Burns  Ann.  St.  1901,  §  7088. 


315  STATUTORY   PROVISIONS.  [§'   289 

statute  notice  is  necessary  to  terminate  a  tenancy  at  will.^^"  All 
tenancies  from  year  to  year  may  be  determined  by  at  least  three 
months'  notice  given  to  the  tenant  prior  to  the  expiration  of  the  year, 
and  in  all  periodic  tenancies  of  less  than  three  months  duration  a 
notice  equal  to  the  interval  between  such  periods  shall  be  sufficient. ^^^ 
When  there  is  a  general  tenancy,  and  the  rent  is  payable  at  stated 
times,  three  months'  notice  before  the  end  of  the  year  is  necessary  to 
terminate  the  tenancy. ^^^  But  a  tenancy  from  year  to  year  may  be 
terminated  by  a  ten  days'  notice  for  failure  to  pay  rent.^'*^  "Where 
the  landlord  agrees  with  the  tenant  to  rent  the  premises  to  him  for  a 
specified  period  of  time ;  or  where  the  time  for  the  determination  of  the 
tenancy  is  specified  in  the  contract ;  or  where  a  tenant  at  will  commits 
waste ;  or  in  the  case  of  a  tenant  at  sufferance ;  or  where  by  the  express 
terms  of  the  contract  rent  is  to  be  paid  in  advance,  and  the  tenant  has 
entered  and  refuses  or  neglects  to  pay  the  rent ;  and  in  any  case  where 
the  relation  of  landlord  and  tenant  does  not  exist,  no  notice  to  quit 
shall  be  necessary. "^^*  Tenants  at  sufferance  are  not  entitled  to  notice 
to  quit.^*°  Notice  should  be  served  on  the  tenant  in  person,  or  if  he 
cannot  be  found  it  should  be  served  by  delivering  a  copy  to  some  per- 
son of  proper  age  and  discretion,  residing  on  the  premises,  having  first 
made  known  to  such  person  the  contents  thereof ;  and  if  no  such  person 
can  be  found  then  notice  may  be  posted  on  the  premises.^®*^  Service  of 
notice  may  be  made  and  proved  by  a  constable.^^^ 

§  289.  Iowa. — Thirty  days'  notice  in  writing  must  be  given  by 
either  party  before  he  can  terminate  a  tenancy  at  will,  but  when  rent 
is  reserved  payable  at  intervals  of  less  than  thirty  days,  the  length  of 
notice  need  not  be  greater  than  such  interval.  In  case  of  tenants  occu- 
pying farms,  the  notice  must  fix  the  termination  of  the  tenancy  to  take 
place  on  the  first  day  of  March,  except  in  cases  of  mere  croppers,  whose 
leases  shall  be  held  to  expire  when  the  crop  is  harvested.  But  where 
an  agreement  is  made  fixing  the  time  of  the  termination  of  the  tenancy, 
whether  in  writing  or  not,  it  shall  cease  at  the  time  agreed  upon  with- 
out notice.^^^  The  provision  regarding  a  notice  to  fix  the  termination 
of  the  tenancy  of  agricultural  lands  has  no  application  when  there  is  an 

''"  Coomler  v.  Hefner,  86  Ind.  108.  "=  Cargar  v.  Fee,  140  Ind.  507,  39 

'"  Burns'  Ann.  St.  1901,  §  7090.  N.  E.  93. 

''=  Elliott  V.    Stone   City   Bank,   4        i'"  Burns'  Ann.  St.  1901,  §  7095. 
Ind.  App.  155.  "^Epstein  v.   Greer,   78  Ind.   348; 

'''Leary  v.  Meier,  78  Ind.  393.  Cressler  v.  Williams,  80  Ind.  366. 
"'Burns'  Ann.  St.  1901,  §  7094.  "'Ann.  Code  1897,  §  2991. 


290] 


NOTICE   TO   QUIT. 


316 


express  agreement. ^^^  A  field  tenant  or  cropper  has  no  right  of  pas- 
turage either  before  or  after  the  crop  is  harvested. ^^^  The  thirty  days' 
notice  in  writing  to  terminate  a  tenancy  at  will  is  not  required  where 
the  tenant  does  not  occupy  the  premises  with  the  assent  of  the  landlord 
after  the  termination  of  the  written  lease.^^^  Where  a  tenancy  is  to 
cease  at  an  agreed  time,  the  tenant  is  not  entitled  to  a  thirty  days' 
notice  to  quit.^®^  An  employe  occupying  premises  belonging  to  his 
employer  after  the  termination  of  the  service  is  entitled  to  no  greater 
rights  than  a  tenant  holding  over  after  the  expiration  of  his  term.^'*^ 

§  290.  Kansas. — "Where  the  time  for  the  termination  of  a  tenancy 
is  specified  in  the  contract,  or  where  a  tenant  at  will  commits  waste, 
or  in  the  case  of  a  tenant  at  sufferance,  and  in  any  case  where  the  rela- 
tion of  landlord  and  tenant  does  not  exist,  no  notice  to  quit  shall  be 
necessary."  "All  tenancies  from  year  to  year  may  be  determined  by  at 
least  three  months'  notice,  in  writing,  given  to  the  tenant  prior  to  the 
expiration  of  the  year.""*  This  last  section  in  effect  dispenses  with 
the  notice  to  the  landlord,  although  the  lack  of  notice  must  operate  as 
an  injustice  to  him  in  many  cases."^     "In  case  of  tenants  occupying 


"« Johnson  v.  Shank,  67  Iowa  115, 
24  N.  W.  749;  Waller  v.  Vermitt,  97 
Iowa  518,  66  N.  W.  763.  In  the  for- 
mer case  Reed,  J.,  said:  "This  pro- 
vision, however,  does  not  establish 
a  rule  for  the  government  of  parties 
in  making  their  contract.  It  simply 
fixes  a  time  at  which,  in  the  absence 
of  express  agreement  to  the  con- 
trary, the  lease  shall  terminate. 
The  lease  in  question  terminated  on 
that  day,  not  because  of  any  stipula- 
tion that  it  should  terminate  at  that 
time,  but  because  the  parties  had 
failed  to  agree  that  it  should  termi- 
nate on  another  date." 

""Kyte  V.  Keller,  76  Iowa  34,  39 
N.  W.  928;  Tantlinger  v.  Sullivan,  80 
Iowa  218,  45  N.  W.  765. 

1"  McClelland  v.  Wiggins,  109 
Iowa  673,  81  N.  W.  156;  Kellogg  v. 
Groves,  53  Iowa  395,  5  N.  W.  517. 

^  Shuver  v.  Klinkenberg,  67  Iowa 
544,  25  N.  W.  770. 

"'  Grosvenor  v.  Henry,  27  Iowa 
269.     Where  tenant  entered  for  the 


remainder  of  an  unexpired  term  un- 
der the  mistaken  belief  they  could 
get  a  term  for  the  ensuing  year,  it 
was  held  that  they  did  not  enter  by 
stealth,  but  were  entitled  to  notice 
to  quit  like  any  other  tenants  hold- 
ing over  after  the  expiration  of  their 
term.  Gifford  v.  King,  54  Iowa  525, 
6  N.  W.  735. 

^^Gen.  St.  1897,  ch.  121,  §§  6,  7. 

"=  Nelson  v.  Ware,  57  Kan.  670,  47 
Pac.  540,  reversing  4  Kan,  App.  258, 
45  Pac.  923.  In  this  case  the  court 
say:  "The  language  of  the  statute 
is  clear  and  unequivocal  in  defining 
what  is  necessary  to  determine  a 
tenancy  from  year  to  year,  and  the 
only  requirement  is  a  written  notice 
for  at  least  three  months  to  the  ten- 
ant. In  effect  it  dispenses  with  no- 
tice to  the  landlord,  although  the 
lack  of  notice  must  operate  as  an  in- 
justice to  him  in  many  cases.  It  is 
an  explicit  statute,  however,  which 
covers  the  subject  and  leaves  no 
room  for  construction." 


317  STATUTOKY  PROVISIONS.  [§§   291,  293 

and  cultivating  farms,  the  notice  must  fix  the  termination  of  the 
tenancy  to  take  place  on  the  first  day  of  March."  "Thirty  days'  notice 
in  writing  js  necessary  to  be  given  by  either  party  before  he  can  termi- 
nate a  tenancy  at  will,  or  from  one  period  to  another  of  three  months 
or  less ;  but  where  in  any  case  rent  is  reserved  payable  at  intervals  of 
less  than  thirty  days,  the  length  of  notice  need  not  be  greater  than 
such  interval  between  the  days  of  payment."^^^ 

The  conduct  of  the  parties  may  be  such  as  to  waive  actual  written 
notice  in  case  the  tenant  vacates  the  premises.  Such  was  the  effect  of 
accepting  payment  of  a  judgment  recovered  for  one  month's  rent  after 
the  end  of  the  tenant's  occupancy."^ 

Notice  may  be  served  on  the  tenant,  or  if  he  cannot  be  found,  by 
delivering  a  copy  to  some  person  over  twelve  years  of  age  residing  on 
the  premises,  having  first  made  known  the  contents  to  such  person.^^* 

§  291.  Kentucky. — "A  tenancy  at  will  or  by  sufferance  may  be 
terminated  by  the  landlord  giving  one  month's  notice,  in  writing,  to 
the  tenant  requiring  him  to  remove.  Wlien  a  tenant  enters  or  holds 
premises  by  virtue  of  a  contract  in  which  it  is  stipulated  that  he  is  to 
labor  for  his  landlord,  and  he  fails  to  begin  such  labor,  or  if,  having 
begun,  without  good  cause  fails  to  comply  with  his  contract,  his  right 
to  the  premises  shall  at  once  cease,  and  he  shall  abandon  them  without 
demand  or  notice."^''''  A  tenant  under  contract  by  which  he  is  to  culti- 
vate crop,  landlord  getting  part  of  proceeds,  is  a  "cropper"  within  the 
meaning  of  this  section,  and  upon  his  fail  are  to  perform  the  contract 
his  landlord  may  maintain  forcible  detainer  proceedings  against 
him.2«o 

The  statutes  modifying  year  to  year  and  month  to  month  tenancies 
have  done  away  with  the  common  law  requirements  for  six  months' 
notice  in  the  former  and  one  month's  notice  in  the  latter  kind  of  hold- 
ings.^^-^ 

§  292.  Louisiana. — "The  parties  must  abide  by  the  agreement  as 
fixed  at  the  time  of  the  lease.  If  no  time  for  its  duration  has  been 
agreed  on,  the  party  desiring  to  put  an  end  to  it  must  give  notice  in 
writing  to  the  other  at  least  fifteen  days  before  the  expiration  of  the 
month  which  has  begun  to  run."^*'^     A  lease  from  month  to  month  con- 

''"Gen.  St.  1897,  ch.  121,  §§  8,  9.  ='"'Wood  v.  Garrison,  23  Ky.  L.  R. 

'""  Betz  v.  Maxwell,  48  Kan.  142,  29     295. 
Pac.  147.  ">'  See  §  238,  and  St.  1903,  §§  2295, 

"'  Gen.  St.  1897,  ch.  121,  §  12.  ,  2296. 

'""St.  1903,  §§  2326,  2327.  ^"^ Merrick's  Rev.  Civ,  Code  1900, 

Art.  2686. 


§  293]  NOTICE  TO  QUIT.  318 

tinues  till  notice  is  given.     Lessee  s  mere  abandonment  does  not  termi- 
nate the  lease.^"^ 

§  293.  Maine. — "Tenancies  at  will  may  be  determined  by  either 
party  by  thirty  days'  notice  in  writing  for  that  purpose,  given  to  thq 
other  party,  and  not  otherwise  save  by  mutual  consent,  excepting  case^ 
where  the  tenant,  if  liable  to  pay  rent,  shall  not  be  in  arrears  at  the 
expiration  of  the  notice,  in  which  case  the  thirty  days'  notice  aforesaid 
shall  be  made  to  expire  upon  a  rent  day.  Either  party  may  waive  in 
writing  the  thirty  days'  notice  or  any  part  thereof.  When  the  tenancy 
is  terminated  the  tenant  is  liable  to  the  process  of  forcible  entry  and 
detainer  without  further  notice.  .  ."  The  wording  of  this  statute  has 
been  said  to  be  awkward  if  not  obscure.^"^  The  construction  put  upon 
it  by  the  court  was  that  the  "expiration  of  the  thirty  days'  notice  to 
terminate  the  lease  at  will  must  be  coincident  in  point  of  time  with  a 
pay  day  of  rent.  Such  notice  given  by  either  side  will  be  valid.  But 
there  is  an  exception  to  this  requirement  so  far  as  a  termination  by  the 
landlord  is  concerned.  His  notice  to  the  tenant  may  be  thirty  days 
without  respect  to  any  pay  day,  if  when  the  notice  expires  the  tenant 
shall  be  in  any  arrears  of  paying  his  rent.  That  is,  it  matters  not 
whether  any  rent  becomes  payable  on  such  particular  day  or  not,  if  any 
rent  previously  due  then  remains  unpaid."  No  notice  to  quit  is  neces- 
sary when  the  holding  is  for  a  fixed  term,  though  such  fixed  term  arises 
from  the  exercise  of  a  power  conferred  by  a  previous  lease  to  make  an 
extension. ^°^  The  common  law  doctrine  that  a  tenancy  at  will  was 
terminated  by  a  transfer  of  the  landlord's  estate  in  force  before  the 
passage  of  this  act^°^  remains  the  law  since  its  passage.^"*  The  statute 
had  reference  to  the  determination  of  tenancies  by  the  will  and  acts 
of  the  parties,  and  not  by  operation  of  law.  The  alienee  does  not  be- 
come the  lessor  at  will  of  the  former  lessee  at  will,  nor  does  the  former 
tenant  at  will  become  tenant  to  the  alienee.  In  conformity  with  this 
construction  of  the  statute  it  should  be  held  that  a  tenancy  at  will  was 
terminated  by  a  transfer  of  the  tenant's  interest.  Such  was  not  the 
result  reached  in  an  earlier  case  where  it  was  said  that  this  statute 
superseded  the  mode  of  determining  such  tenancies  at  common  law.*"* 

=°'Waples  V.  City  of  New  Orleans,  =<"Esty  v.  Baker,  50  Me.  325. 

28  La.  Ann.  688.  '"'  Seavey  v.  Cloudman,  90  Me.  536, 

'"^Rev.  St.  1903,  ch.  96,  §  2;  Rev.  38  Atl.  540.     Con^ro,  Young  v.  Young, 

St.  1883,  ch.  94,  §  2.  36  Me.  133. 

'"'Wilson  V.  Prescott,  62  Me.  115,  =°^  Cunningham  v.  Horton,  57  Me. 

per  Peters,  J.  420. 

=»«  Willoughby  v.  Atkinson  &c.  Co., 
93  Me.  185,  44  Atl.  612. 


1 


319  STATUTORY    PROVISIONS.  [§§    294,   295 

Where  a  tenant,  without  written  notice  or  the  consent  of  the  land- 
lord, abandons  the  possession  of  premises  verbally  leased  to  him  his 
liability  for  rent  continues  for  whatever  period  may  elapse  before  the 
tenancy  becomes  terminated  by  written  notice,  or  until  possession  of 
the  premises  may  be  accepted  by  the  landlord.^^** 

§  294.  Maryland. — Where  real  estate  is  leased  for  a  definite  term 
or  at  will  and  the  lessor  desires  to  repossess  himself  of  the  same  he  shall 
give  notice  one  month  before  the  expiration  of  the  term  or  determina- 
tion of  the  will ;  and  if  the  tenant  refuses  to  vacate  he  may  make  com- 
plaint to  a  justice  of  the  peace,  etc.  This  section  applies  to  periodic 
tenancies,  except  that  in  cases  of  tenancy  from  year  to  year  a  notice  in 
writing  shall  be  given  six  months  before  the  current  year  of  the  ten- 
ancy; and  in  weekly  or  monthly  tenancies  a  notice  in  writing  of  one 
week  or  one  month,  as  the  case  may  be,  shall  be  given.  Where  a  tenant 
has  given  notice  by  parol  of  sufficient  duration  to  terminate  his  periodic 
holding,  the  landlord  may  prove  such  parol  notice  and  insist  that  the 
tenancy  end  and  the  tenant  vacate.  The  provisions  as  to  notice  do  not 
apply  in  Baltimore  city.^^^ 

§  295.  Massachusetts. — "Estates  at  will  may  be  determined  by 
either  party  by  three  months'  notice  in  writing  to  the  other  party ;  and 
if  the  rent  reserved  is  payable  at  periods  of  less  than  three  months, 
the  time  of  such  notice  shall  be  sufficient  if  it  is  equal  to  the  interval 
between  the  days  of  payment ;  and  in  all  cases  of  neglect  or  refusal  to 
pay  the  rent  due  from  a  tenant  at  will  fourteen  days'  notice  to  quit, 
given  in  writing  by  the  landlord  to  the  tenant,  shall  be  sufficient  to 
determine  the  tenancy."- ^^  As  tenants  at  sufferance  are  expressly 
omitted  from  this  statute,  the  common  law  rule  would  prevail,  and 
such  tenants  would  not  be  entitled  to  any  notice  to  quit.^^^     The  re- 

""  Rollins  V.  Moody,  72  Me,  135.  by  three  months'  notice,  with  some 
^"Pub.   Gen.  Laws  1888,  Art.   53,  modification    where    the    rent    was 
§§  1,  6,  7.  payable  more  frequently  than  quar- 
="^  Rev.  Laws  1902,  ch.  129,  §  12.  terly.     But  the  Rev.  Sts.,  c.  60,  §  26, 
"^  Kinsley     v.      Ames,      2     Mete,  which  provide  that  estates  at  will 
(Mass.)  29,  31.     Chief  Justice  Shaw  may  be  determined  by  three  months' 
says:     "By  St.  1825,  c.  89,  §  4,  com-  notice,  designedly  omit  tenancies  at 
monly  called  the  landlord  and  ten-  sufferance  because,  as  the  commis- 
ant  act,   tenants  at   sufferance   and  sioners  say  in  their  note  to  this  sec- 
tenants  at  will  were  put  on  the  same  tion,  so  long  as  the  party  continues 
footing  in  regard  to  notice;   and  it  to  be  a  mere  tenant  at  sufferance, 
was   provided    that    such   tenancies  his  estate  is  and  ought  to  be  deter- 
might  be  terminated  by  either  party  minable    at    any    moment,    at    the 


§  296]  NOTICE  TO  QUIT.  320 

quirement  for  fourteen  days'  notice  has  not  received  a  technical  con- 
struction, and  if  the  notice  is  served  more  than  fourteen  days  before 
the  action  is  brought  that  is  sufficient.  Thus  where  a  notice  required 
a  tenant  to  quit  within  fourteen  days  from  date  and  was  served  on  the 
day  it  was  dated,  the  court  would  not  entertain  an  objection  that  it 
was  not  a  proper  and  valid  notice.-^* 

§  296.  Michigan. — "All  estates  at  will  or  by  sufferance  may  be 
determined  by  either  party  by  three  months'  notice  given  to  the  other 
party ;  and  when  the  rent  reserved  in  a  lease  is  payable  at  periods  of 
less  than  three  months,  the  time  of  such  notice  shall  be  sufficient  if  it 
be  equal  to  the  interval  between  the  times  of  payment."^^^  It  is  not 
necessary  to  specify  in  the  notice  whether  the  holding  is  at  will  or  by 
sufferance.-^*'  A  person  in  possession  of  land  becomes  a  tenant  at 
sufferance  if  the  owner  suffers  him  to  remain  in  possession  a  sufficient 
length  of  time  to  imply  an  intentional  acquiescence  in  the  occupancy. 
Although  express  consent  to  the  holding  is  not  necessary,  implied  con- 
sent is  necessary.^^'^  A  tenant  who  wrongfully  holds  over  after  the 
termination  of  his  lease  does  not  acquire,  by  a  brief  delay,  equities 
entitling  him  to  a  three  months'  notice  to  quit.^^^  In  cases  of  tenancy 
from  year  to  year  a  notice  to  quit,  given  at  any  time,  shall  be  sufficient 
to  terminate  the  holding  at  the  expiration  of  one  year  from  the  time 
of  the  service  of  such  notice.^^^  A  notice  shall  not  be  void  by  reason 
of  its  mentioning  a  day  for  the  termination  of  the  tenancy  not  corre- 
sponding to  the  conclusion  or  commencement  of  any  rent  period,  but 
in  any  such  case  the  notice  shall  be  held  to  terminate  the  tenancy  at 
the  end  of  a  period  equal  in  time  to  that  in  which  the  rent  is  made  pay- 
able.--''    An  objection  to  the  length  of  a  notice  given  to  terminate  a 

pleasure   of  the   landlord.     The  de-  ""  Comp.  Laws  1897,  §  9257;  Grady 

fendant  therefore  was  not  entitled  v.  Warrell,  105  Mich.  310,  63  N.  W. 

to  notice  to  quit.     He  was  precisely  204. 

within  the  provision  of  the  statute,  ^="  Comp.  Laws  1897,  §  9257.     Prior 

which   gives  the  process  when  the  to   the   amendment   of  1885   it  was 

possession  of  lands  or  tenements  is  held  that  in  order  to  terminate  a 

lawfully  held  by  force."  tenancy  at  will  by  a  notice  of  less 

"*  Johnson    v.    Stewart,    11    Gray  than  three  months,  the  notice  must 

(Mass.)  181.  be  for  the  full  time  of  the  rent  in- 

""  Comp.  Laws  1897,  §  9257.  terval,  and  must  terminate  on  one 

-^®  Bennett  v.  Robinson,   27  Mich,  of  the  days  fixed  for  the  payment  of 

26.  rent.     Woodrow  v.  Michael,  13  Mich. 

="  School  District  v.  Batsche,  106  187,  190;  Huyser  v.  Chase,  13  Mich. 

Mich.  334,  64  N.  W.  196.  98. 

"'  Benfey    v.    Congdon,    40    Mich. 
283,  286. 


I 


321  STATUTORY   PROVISIONS.  [§    297 

year  to  year  tenancy  can  not  be  raised  for  the  first  time  on  an  appeal 
to  the  Supreme  Court,  when  at  the  time  it  is  made  the  statutory  year 
has  elapsed  since  the  giving  of  the  notice. ^^^  In  eases  of  neglect  or 
refusal  to  pay  rent  on  a  lease  at  will  or  otherwise,  seven  days'  notice  to 
quit,  given  in  writing  by  the  landlord  to  the  tenant,  shall  be  sufficient 
to  determine  the  lease.^^^  A  tenant  who  has  refused  to  pay  rent  until 
repairs  are  made,  and  is  accordingly  notified  to  quit,  has  a  right  to 
regard  the  lease  as  ended,  and  if  the  landlord  then  agrees  to  make  the 
repairs,  provided  the  tenant  will  stay,  the  lease  is  a  new  one.^^^ 

§  297.  Minnesota. — "Estates  at  will  may  be  determined  by  either 
party  by  three  months'  notice  in  writing  for  that  purpose,  given  to  the 
other  party ;  and  when  the  rent  reserved  is  payable  at  periods  of  less 
than  three  months,  the  time  of  such  notice  shall  be  sufficient  if  it  is 
equal  to  the  interval  between  the  times  of  payment;  and  in  all  cases 
of  neglect  or  refusal  to  pay  the  rent  due  on  a  lease  at  will  fourteen  days' 
notice  to  quit,  given  in  writing  by  the  landlord  to  the  tenant,  is 
sufficient  to  determine  the  lease.^^*  Although  this  statute  does  not  ex- 
pressly mention  tenancies  from  year  to  year,  it  was  held  to  apply  to 
them,  as  such  holdings  were  one  species  of  tenancy  at  will  according 
to  the  common  law  idea.^^^  But  this  section  had  reference  only  to  the 
length  of  the  notice,  and  does  not  otherwise  change  the  existing  rules 
of  law  as  to  when  the  notice  should  terminate.  For  example,  where 
by  implication  the  tenancy  is  from  quarter  to  quarter  or  from  month 
to  month,  the  rent  being  payable  quarterly  or  monthly,  the  notice  must 
still  terminate  with  the  quarter  or  month;  and  where  the  tenancy  is 
from  year  to  year  the  notice  must  terminate  with  a  year,  although  the 
length  of  it  may  now  be  shorter  than  six  months,  as  formerly  required 
at  common  law."^-*^ 

A  tenancy  at  will  where  the  rent  is  payable  monthly  may  be  deter- 
mined by  a  month's  notice  to  quit  by  either  landlord  or  tenant,  but  the 

"'Ganson    v.    Baldwin,    93    Mich.  Smith  v.  Bell,  supra,  we  have  come 

217,  53  N.  W.  171.  to   the   conclusion,   upon    fuller   ex- 

="  Comp.  Laws  1897,  §  9257.  amination,  that  the  provisions  of  75, 

"'"Conkling    v.    Tuttle,    52    Mich.  §40,  in  relation  to  notices  to  quit, 

630,  18  N.  W.  391.  were  intended  to  apply  to  all  estates 

"*  Stat.  1894,  §  5873.  which  do  not  terminate  themselves 

"=  Hunter  v.  Frost,  47  Minn.  1,  49  without  notice,  and  that  for  the  pur- 

N.  W.  327,  overruling  Smith  v.  Bell,  pose  of  such  notices  a  tenancy  from 

44  Minn.  524,  47  N.  W.  263.     In  the  year  to  year  is  a  tenancy  at  will." 
principal   case   it   was   said:     "Not-        ""Hunter  v.  Frost,  47  Minn.  1,  49 

withstanding  what  was  decided   in  N.  W.  327. 
Jones  L.  &  T.— 21 


§§  298,  299]  NOTICE  to  quit.  323 

notice  must  regularly  terminate  with  some  month  counting  from  the 
beginning  of  the  tenancy.^^^ 

The  statute  relating  to  service  of  notice  in  civil  actions  does  not 
apply  to  the  service  of  a  notice  to  quit.*^* 

§  298.  Mississippi. — "Notice  to  quit  shall  be  necessary  only  where 
the  term  is  not  to  expire  at  a  fixed  time.  In  all  cases  in  which  a  notice 
is  required  to  be  given  by  the  landlord  or  tenant  to  determine  a  tenancy, 
two  months'  notice,  in  writing,  shall  be  given  where  the  holding  is 
from  year  to  year,  and  one  month's  notice  shall  be  given  where  the 
holding  is  by  the  half  year  or  quarter  year ;  and  where  the  letting  is  by 
the  month  or  by  the  week  one  week's  notice,  in  writing,  shall  be 
given."^^^  This  statute  provides  only  for  notice  to  terminate  tenancies 
from  period  to  period.  It  makes  no  express  provision  requiring  that  a 
tenancy  strictly  at  will  shall  be  terminated  by  notice,  for  the  first  sen- 
tence is  only  negative  in  its  effect.  Such  was  the  result  reached  when 
this  question  arose  in  a  case  where  the  occupancy  had  been  by  consent 
but  without  the  payment  of  rent.^^°  And  though  the  decision  was 
rested  on  the  ground  that  there  was  no  estate  but  a  mere  license,  this 
argument  would  apply  with  equal  force  in  the  case  of  a  strict  tenancy 
at  will.  So  it  is  the  opinion  of  the  writer  that  the  statute  in  this  state 
leaves  the  common  law  doctrine  in  regard  to  notice  to  terminate  estates 
at  will  and  by  sufferance  untouched.  It  follows  that  such  holdings  can 
be  terminated  without  notice,  the  only  requirement  being  that  a  rea- 
sonable time  be  given  the  tenant  to  remove  his  effects. 

§  299.  Missouri. — "Either  party  may  terminate  a  tenancy  from 
year  to  year  by  giving  notice,  in  writing,  of  his  intention  to  terminate 
the  same,  not  less  than  sixty  days  next  before  the  end  of  the  year.  A 
tenancy  at  will  or  by  sufferance  or  for  less  than  one  year  may  be  termi- 
nated by  the  person  entitled  to  possession  by  giving  one  month's  notice, 
in  writing,  to  the  person  in  possession  requiring  him  to  remove.  No 
notice  to  quit  shall  be  necessary  from  or  to  a  tenant  whose  term  is  to 
end  at  a  certain  time,  or  when  by  special  agreement  notice  is  dispensed 
with."^^^  A  month's  notice  is  necessary  to  terminate  the  tenancy 
whether  it  be  at  will  or  by  sufferance  ;^^^  but  by  virtue  of  this  statute 

=^  Grace  v.  Michand,  50  Minn.  139,  =^  Ann.  Code  1892,  §  2544. 

52  N.  W.   390;    Finch  v.  Moore,  50  ^=°  Johns  v.  McDaniel,  60  Miss.  486. 

Minn.  116,  52  N.  W.  384;  Eastman  v.  '^^  Rev.  St.  1899,  §§  4109-4111. 

Vetter,  57  Minn.  164,  58  N.  W.  989.  "'  Tarlotting    v.    Bokern,    95    Mo. 

^^  Alworth    v.    Gordon,    81    Minn.  541,  8  S.  W.  547. 
445,  84  N.  W.  454. 


ti 


i 


323  STATUTORY   PROVISIONS.  [§§    300-302 

any  tenancy  for  less  than  one  year  may  be  terminated  by  one  month's 
notice."^  A  tenant  is  not  bound  by  casual  remarks  made  by  his  land- 
lord about  an  increase  of  rent ;  and  a  mere  verbal  notice  to  a  tenant 
from  year  to  year  is  not  enough  to  make  him  liable  for  increased  rent 
where  he  holds  over.^^* 

§  300.  Montana. — "A  tenancy  or  other  estate  at  will,  however 
created,  may  be  terminated  by  the  landlord's  giving  notice  in  writing 
to  the  tenant  to  remove  from  the  premises  within  a  period  of  not  less 
than  one  month,  to  be  specified  in  the  notice.  After  such  notice  has 
been  served  and  the  period  specified  by  such  notice  has  expired,  but 
not  before,  the  landlord  may  reenter  or  proceed  according  to  law  to 
recover  possession."^^^  Service  of  the  notice  may  be  made  personally 
on  the  tenant,  or  it  may  be  made  by  leaving  the  notice  at  his  residence, 
between  the  hours  of  eight  in  the  morning  and  six  in  the  afternoon, 
with  some  person  of  suitable  age  and  discretion.  If  the  residence  be 
not  known,  service  may  be  made  by  putting  the  notice,  enclosed  in  an 
envelope,  into  the  postoffice,  directed  to  the  tenant.-^* 

§  301.  Nevada. — In  all  leases  from  month  to  month,  the  land- 
lord may,  upon  giving  notice  in  writing  at  least  fifteen  days  before  the 
expiration  of  the  month,  change  the  terms  of  the  lease,  to  take  effect 
at  the  expiration  of  said  month.  Such  notice  shall  of  itself  be  ef- 
fectual to  establish  the  terms  specified,  if  the  tenant  continues  to  hold 
the  premises.  Provided,  That  a  tenancy  from  month  to  month  may 
be  terminated  by  the  landlord  giving  notice  of  such  termination  ten 
days  prior  to  the  expiration  of  the  month.^^^ 

§  302.  New  Hampshire. — "Any  lessor  or  owner  of  lands  or  tene- 
ments may  at  any  time  determine  any  lease  at  will  or  tenancy  at  suffer- 

"'Berner  V.  Gebhardt,  87  Mo.  App.  App.  529.     A  tenant  from  month  to 

409.     Where  one  of  the  parties  to  a  month  is  entitled  only  to  a  month's 

monthly  renting  attempts  to  termi-  notice  to  quit,  even  though  he  may 

nate  the  tenancy,  the  written  notice  have  a  right  of  action  in  equity  to 

must  be  served  on  the  other  party  compel  the  execution  of  a  lease  for  a 

before  the  beginning  of  the  succeed-  given  period.     Such  defense  can  not 

ing  or  last  rental  month.     Gunn  v.  be  set  up  in  a  justice's  court.  Grue- 

Sinclair,  52  Mo.  327;  Corby  v.  Brill  newald  v.  Schaales,  17  Mo.  App.  324. 

&c.    Co.,   76    Mo.   App.   506.      Where  "'  Witte  v.  Witte,  6  Mo.  App.  488. 

month  to  month  tenancy  began  on  "=  Civil  Code  1895,  §§  1240,  1241. 

the  first  of  the  month,  a  notice  to  ""Code   of   Civil   Procedure   1895, 

quit  served,  Feb.  10th,  requiring  ten-  §  1831.     See  §  280,  post, 

ant  to  quit  March  31,  was  held  suf-  "' Comp.  Laws  1900,  §§  3827,  3838. 
ficient.     Snyder   v.    Parker,   75    Mo. 


§   303]  NOTICE   TO   QUIT.  324 

ance  by  giving  to  the  tenant  or  occupant  a  notice  in  writing  to  quit  the 
same  at  a  day  named  therein.  If  the  tenant  or  occupant  refuses  to 
pay  the  rent  due  and  in  arrear  upon  demand,  seven  days'  notice  shall 
be  sufficient.  If  the  rent  is  payable  more  frequently  than  once  in 
three  months,  whether  such  rent  is  due  or  not  due,  thirty  days'  notice 
shall  be  sufficient,  and  three  months'  notice  shall  be  sufficient  in  all 
cases.  If  a  lessee  violates  the  conditions  of  a  written  lease,  seven  days' 
notice  shall  be  sufficient.  If  a  lessee  holds  over  after  the  expiration  of 
a  definite  written  lease,  seven  days  shall  be  sufficient.  A  lessee  may 
terminate  his  lease  by  notice  in  writing  in  the  same  manner  as  the 
lessor."^^^  The  notice  requisite  under  the  statute  to  determine  a  ten- 
ancy at  will  may  require  the  tenant  to  quit  on  any  day  therein  named ; 
it  need  not  require  the  tenant  to  quit  on  the  last  day  of  the  year,  month 
or  week  of  the  tenancy.^^^  Seven  days'  notice  to  quit  is  not  sufficient 
to  terminate  a  tenancy  at  will  unless  there  has  been  a  demand  of  the 
precise  amount  of  rent,  due  and  in  arrears,  and  a  neglect  or  refusal  to 
pay  it.2*o 

§  303.  New  Jersey. — The  statute  provides  "that  in  all  cases  where 
any  tenant  is  or  may  be  entitled  by  law  to  notice  to  quit  the  premises 
by  him  holden,  in  order  to  determine  his  tenancy,  three  months'  notice 
to  quit  as  aforesaid  shall  be  deemed  and  taken  to  be  sufficient."^'*^  The 
tenant  is  bound  to  quit  the  premises  without  notice  when  his  lease  ex- 
pires. ^*^  But  in  all  cases  of  tenancy  from  year  to  year  or  of  uncertain 
duration  the  tenant  must  have  notice.^*^  A  tenant  at  sufferance  is 
not  entitled  to  notice  at  common  law,  and  under  the  landlord  and 
tenant  act  a  previous  demand  of  possession  only  is  required  as  a  condi- 
tion upon  which  a  summons  may  issue.^**  It  is  further  provided  in  a 
supplemental  section  that  in  any  letting  where  no  term  is  agreed  upon 
and  the  rent  is  payable  monthly,  so  long  as  the  tenant  pays  the  rent  as 
agreed  it  shall  be  unlawful  for  the  landlord  to  dispossess  the  tenant 
before  the  first  of  April  succeeding  the  commencement  of  the  letting 

'^Publ.  St.  1901,  ch.  246,  §§  2-6.  for  rent.     Whitney  v.  Swett,  22  N. 

"°  Stickney    v.    Burke,    64    N.    H.  H.  10. 

377,  10  Atl.  852;   Currier  v.  Perley,  ="  Gen.  St.  1895,  p.  1921,  §  29. 

24  N.  H,  219;  Hazeltine  v.  Colburn,  '"Decker  v.  Adams,  12  N.  J.  L.  99. 

31  N.  H.  466,  471.  ''^^Ben  v.  Drake,  14  N.  J.  L.  523; 

'"Nowell  V.  Wentworth,  58  N.  H.  Van  Campden  v.  Depue,  11  N.  J.  L. 

319.     After  giving  a  statutory  seven  409;    Den  v.   Snowhill,  23  N.   J.  L. 

days'  notice  to  quit,  landlord  may  447. 

waive  the  rights  he  thereby  acquires  '"  Moore  v.  Smith,  56  N.  J.  L.  446, 

to  terminate  the  tenancy,  as  by  an  29  Atl.  159. 
unconditional  acceptance  of  a  surety 


325  STATUTORY    PROVISIONS.  [§    304 

without  giving  the  tenant  three  months'  notice  in  writing  to  quit.^'*^ 
This  latter  section  does  not  apply  where  the  letting  is  for  a  definite 
term,  for  "one  month  and  a  monthly  term  thereafter."  Thus  in  one 
case  the  monthly  term  commenced  on  the  tenth  day  of  November,  and 
it  was  held  that  a  notice  to  quit  on  the  first  day  of  April  following  was 
insufficient.^^®  The  date  set  for  quitting  should  have  corresponded  to 
the  time  of  the  commencement  of  the  tenancy. 

§  304.  New  York. — "A  tenancy  at  will  or  by  sufferance,  however 
created,  may  be  terminated  by  a  written  notice  of  not  less  than  thirty 
days,  given  in  behalf  of  the  landlord  to  the  tenant.  The  notice  must 
be  given  to  the  tenant  or  to  a  person  of  suitable  age  and  discretion, 
residing  upon  the  premises,  or  if  neither  the  tenant  nor  such  person 
can  be  found,  the  notice  may  be  posted  on  the  premises.  At  the  ex- 
piration of  thirty  days  after  the  service  of  such  notice  the  landlord 
may  enter  or  maintain  ejectment."^*'^  An  exception  to  the  general  rule 
in  regard  to  the  requirement  for  notice  to  terminate  a  year  to  year 
tenancy  is  found  in  the  law  of  New  York.  The  statute  authorizing 
summary  process  for  the  eviction  of  tenants  provided  for  notice  to  ten- 
ants at  will  or  by  sufferance,  but  no  requirement  of  notice  was  pro- 
vided in  the  case  of  tenants  for  one  or  more  years.  So  that  a  tenant 
from  year  to  year,  though  in  ejectment  he  was  entitled  to  six  months' 
notice,  yet  in  summary  proceedings  was  not  entitled  to  any  notice.^*^ 
In  regard  to  this  point  Mr.  Justice  Balcom,  a  justice  of  the  Supreme 
Court,  reasons  as  follows:-^''  "Now,  as  no  notice  to  quit  is  required 
by  the  Eevised  Statutes  to  be  given  to  a  tenant  for  one  or  more  years 
to  authorize  proceedings  for  his  removal,  none  need  be  given  him ;  and 
as  a  tenant  from  year  to  year  is  a  tenant  for  one  or  more  years,  he  may 
be  proceeded  against  in  a  summary  manner  for  holding  over  after  the 
expiration  of  his  term  without  six  or  one  month's  previous  notice."  It 
remained  for  the  Court  of  Appeals  to  extend  this  doctrine  one  step 
further  and  hold  that  a  tenant  from  year  to  year  could  vacate  the 
premises  at  the  expiration  of  any  year  of  his  holding  without  giving 

=*=Gen.  St.  1895,  p.  1924,  §  37.  =«'Gen.  Laws  1901,  ch.  46,  art.  6, 

==*»  Pinkelstein  v.  Herson,  55  N.  J.  §  198. 

L.  152,  26  Atl.  688.     The  court  left  ^*^  Nichols  v.  Williams,  8  Cow.  (N. 

the     construction     of    this    supple-  Y.)  13. 

mental  act  to  a  future  occasion.  The  ^*^  In  Parke  v.  Castle,  19  How.  Pr. 

statute  in  question  had  been  char-  (N.   Y.)    29,   the   court  fails  to   re- 

acterized  as  a  "curious  act"  by  Mr.  member  that  by  the  old  common  law 

Justice  Reed  in  Shaw  v.  Schietinger,  a  tenancy  from  year  to  year  was  a 

51  N.  J.  L.  152,  16  Atl.  186.  modified  tenancy  at  will. 


§§  305-307]  NOTICE  TO  QUIT.  326 

any  previous  notice  to  quit,  and  escape  any  further  obligation  to  pay 
rent.  The  court  say :  ".  .  .  The  landlord  is  not  bound  to  give  the  ten- 
ant notice  to  leave  even  for  the  purpose  of  instituting  summary  pro- 
ceedings to  recover  possession  of  the  premises.  If  such  is  the  case  in  re- 
spect to  the  landlord,  why  should  it  not  be  so  as  to  the  tenant  ?  Their 
rights  and  duties  are  correlative  and  reciprocal."  And  again  at  another 
part  of  the  opinion  it  is  said :  "At  the  end  of  the  year  thus  hired  by 
implication  the  rights  and  the  remedies  which  existed  at  the  end  of  the 
former  term  are  again  revived.  Those  rights  are,  as  we  have  seen, 
that  the  landlord  may  remove  the  tenant  without  notice,  and  the  tenant 
may  quit  the  possession  without  giving  the  landlord  any  notice  of  his 
intention  to  do  so."^^" 

§  305.  North  Carolina. — A  tenancy  from  year  to  year  may  be 
terminated  by  a  notice  to  quit,  given  three  months  or  more  before  the 
end  of  the  current  year  of  the  tenancy ;  a  tenancy  from  month  to  month 
by  a  like  notice  of  fourteen  days ;  a  tenancy  from  week  to  week,  of  two 
days.^^^  Under  this  statute  a  mere  demand  for  possession  of  a  year 
to  year  tenant  is  insufficient,  but  it  is  sufficient  to  give  a  written  or 
verbal  notice  to  quit  three  months  before  the  expiration  of  the  current 
year.^^- 

§  306.  North  Dakota. — A  tenancy  or  other  estate  at  will,  however 
created,  may  be  terminated  by  the  landlord's  giving  notice  to  the  tenant 
in  the  manner  prescribed  to  remove  from  the  premises  within  a  period 
specified  in  the  notice  of  not  less  than  one  month.  The  notice  must 
be  in  writing,  and  must  be  served  by  delivering  the  same  to  the  tenant 
or  to  some  person  of  discretion  residing  on  the  premises.  If  neither 
can  be  found,  the  notice  may  be  posted  on  the  premises.  After  the 
period  specified  by  such  notice  has  expired,  but  not  before,  the  land- 
lord may  reenter  or  proceed  according  to  law  to  recover  possession. ^^^ 

§  307.  Ohio. — There  are  no  statutes  in  this  state  in  regard  to  the 
requirements  for  notice  to  terminate  tenancies.  In  ejectment  a  statute 
requires  ten  days'  notice  before  the  commencement  of  the  term  at  which 
the  appearance  of  the  defendant  in  the  ejectment  suit  is  to  be  entered ; 
and  in  forcible  detainer  three  days'  notice  before  the  commencement 
of  the  suit ;  but  this  is  a  different  thing  from  notice  to  quit.^^'*     The 

^=°  Adams  v.  City  of  Cohoes,  127  N.        ^'^  Civil  Code  1895,  §§  3346-3348. 
Y.  175,  28  N.  E.  25.  '=^  Gladwell  v.  Holcomb,  7  Ohio  Cir. 

'=1  Code  1883,  Vol.  I,  §  1750.  Dec.  369,  quoting  from  Walker's  Am. 

'"Vincent  v.   Corbin,   85   N.   Car.  Law,   §   133;    Bates  Ann.   St.    1904, 

108.  §  6602. 


327  STATUTORY  PROVISIONS.  [§   308 

Ohio  court  feels  itself  bound  by  the  technical  rules  of  common  law  only 
so  far  as  they  are  applicable  to  the  changed  conditions  in  a  new  coun- 
try.^^^  So  it  was  held  in  regard  to  a  store-room  rented  for  mercantile 
purposes  that  the  English  rule  requiring  six  months'  notice  to  termi- 
nate a  tenancy  from  year  to  year  did  not  apply.  The  court  adopted  the 
rule  that  notice  must  be  given  a  reasonable  time  before  the  expiration 
of  the  year.  In  cases  of  doubt  the  question  of  reasonableness  should  be 
left  to  the  jury.  But  four  months  was  a  reasonable  time  as  a  matter 
of  law,  and  the  trial  court  was  justified  in  so  instructing  the  jury.^^® 

§  308.  Oregon. — "All  estates  at  will  or  by  sufferance  may  be  de- 
termined by  either  party  by  three  months'  notice,  in  writing,  given  to 
the  other  party ;  and  when  the  rent  reserved  in  a  lease  at  will  is  pay- 
able at  periods  of  less  than  three  months,  the  time  of  such  notice  shall 
be  sufficient  if  it  be  equal  to  the  interval  between  the  times  of  pay- 
ment." In  cases  of  neglect  to  pay  rent  on  a  lease  at  will,  fourteen 
days'  notice  to  quit,  given  in  writing  by  the  landlord  to  the  tenant, 
shall  be  sufficient  to  determine  the  lease.^^'^  Twelve  years  after  this 
statute  was  enacted  the  forcible  entry  and  detainer  act  was  thrust  into 
the  statute  without  regard  to  its  harmony  or  fitness  with  the  other  pro- 
visions.^^^  This  act  provided  that  "the  following  shall  be  deemed 
cases  of  unlawful  holding  by  force  within  the  meaning  of  this  chapter : 
1.  When  the  tenant  or  person  in  possession  of  any  premises  shall  fail 
or  refuse  to  pay  any  rent  due  on  the  lease  or  agreement  under  which 
he  holds,  or  deliver  up  possession  of  said  premises  for  ten  days  after 
demand  made  in  writing  for  such  possession.  2.  When,  after  a  notice 
to  quit  as  provided  in  this  chapter,  any  person  shall  continue  in  the 
possession  of  any  premises  at  the  expiration  of  the  time  limited  in  the 
lease  or  agreement  under  which  such  person  holds,  or  contrary  to  any 
condition  or  covenant  thereof,  or  without  any  written  lease  or  agree- 
ment therefor."^^®  In  regard  to  these  two  acts  it  was  held  that  the 
provisions  of  the  latter  section  could  only  be  enforced  as  against  a 
tenant  who  is  wrongfully  in  possession  of  the  demised  premises,  and  a 
remedy  under  this  act  can  not  be  taken  against  a  tenant  from  year  to 
year  until  the  tenancy  is  determined  by  the  notice  provided  for  in  the 

^'"^  Bloom  V.  Richards,  2  Ohio  St.  '"  Bell.  &  C.  Ann.  Codes  &  St.  1902, 

387;  Kerwhacker  v.  Cleveland  &c.  R.  §  5390. 

Co.,  3  Ohio  St.  172;  Drake  v.  Rogers,  ^""^  Rosenblat   v.    Perkins,    18    Ore. 

13  Ohio  St.  21,  36.  156,  22  Pac.  598. 

='«  Gladwell  v.  Holcomb,  7  Ohio  Civ.  "-"»  Bell.  &  C.  Ann.  Codes  &  St.  1902, 

Dec.  369.     One  of  three  judges  dis-  §  5755. 
sented. 


§§  309,  310]  NOTICE  TO  QUIT.  328 

earlier  statute  or  by  agreement  of  the  parties.  A  tenant,  therefore,  in 
possession  of  demised  premises  without  any  written  lease  or  agree- 
ment can  not  be  dispossessed  under  this  act  until  he  is  in  the  wrong.^^" 
Where  the  letting  is  for  less  time  than  one  year  the  period  for  the 
notice  is  fixed  by  the  manner  of  paying  the  rent.  Thus  if  the  rent  is 
paid  monthly,  a  month's  notice  is  required.^^^  A  notice  to  quit  should 
be  served  by  being  left  with  the  tenant  or  person  in  possession  of  the 
premises.    Proof  of  service  may  be  by  parol.^^* 

§  309.  Oklahoma  Territory. — "Thirty  days'  notice  in  writing  is 
necessary  to  be  given  by  either  party  before  he  can  terminate  a  tenancy 
at  will  or  from  one  period  to  another  of  three  months  or  less ;  but  where 
in  any  case  rent  is  reserved,  payable  at  intervals  of  less  than  thirty 
days,  the  length  of  notice  need  not  be  greater  than  such  interval  be- 
tween the  days  of  payment.  All  tenancies  from  year  to  year  may  be 
determined  by  at  least  three  months'  notice,  in  writing,  given  to  the 
tenant  prior  to  the  expiration  of  the  year.  In  the  case  of  tenants  oc- 
cupying and  cultivating  farms,  the  notice  must  fix  the  termination  of 
the  tenancy  to  take  place  on  the  first  day  of  January."  Notice  to  quit 
may  be  given  in  case  of  non-payment  of  rent,  the  duration  of  the  notice 
being  ten  days  where  rent  is  payable  at  intervals  of  three  months  or 
longer  and  five  days  in  other  cases.  "When  the  time  for  the  termina- 
tion of  a  tenancy  is  specified  in  the  contract  or  where  a  tenant  at  will 
commits  waste,  or  in  the  case  of  a  tenant  by  sufferance,  and  in  any  case 
where  the  relation  of  landlord  and  tenant  does  not  exist,  no  notice  to 
quit  shall  be  necessary."  Notice  may  be  served  on  the  tenant,  or,  if 
he  can  not  be  found,  by  delivering  the  same  to  some  person  over  twelve 
years  of  age,  residing  on  the  premises,  having  first  made  known  to  such 
person  the  contents  thereof.^®  ^  In  a  tenancy  from  year  to  year  no 
notice  is  necessary  from  the  tenant  to  the  landlord.  ^^* 

§  310.  Pennsylvania. — It  is  provided  in  the  landlord  and  tenant 
act  that  a  landlord  may  require  his  tenant  or  lessee  to  remove  from 
the  premises,  and  if  such  tenant  or  lessee  shall  refuse  to  comply  there- 
with in  three  months  after  such  request  to  him  is  made,  the  landlord 

'"^  Rosenblat   v.    Perkins,    18  Ore.     topic  of  notice   is  touched   on  and 

156,  22  Pac.  598.  partially  covered  a  second  time  in 

="  Rosenblat    v.    Perkins,    18  Ore.     §§  4047-4049. 

156,  22  Pac.  598.  ="  Nelson   v.    Ware,    57    Kan.    670, 

="=  Chung  You    V.    Hop   Chong,    11     47  Pac.  540,  modifying  4  Kan.  App. 

Ore.  220,  4  Pac.  326.  258,  45  Pac.  923. 

^^  Rev.  St.  1903,  §§  3323-3329.  The 


329  STATUTORY  PEOVISIONS.  [§   311 

may  make  a  complaint  and  have  a  warrant  issued  in  the  nature  of  a 
summons.^^^  Where  the  lease  is  from  year  to  year  the  notice  to  quit 
must  be  given  three  months  before  the  expiration  of  the  current 
yg^j._266  ;g^^  If  ^^Q  lease  is  for  a  fixed  definite  period,  to  expire  at  a 
certain  time,  a  notice  before  the  expiration  of  the  term  is  unnecessary ; 
if  the  tenant  do  not  then  remove,  the  landlord  may,  after  its  expira- 
tion, give  notice  and  proceed  under  this  act.^®''  The  tenant  may  waive 
the  notice,  but  such  waiver  must  be  expressly  found  by  the  jury  form- 
ing the  inquisition.^^^ 

§  311.  Rhode  Island. — "Tenants  of  land  or  tenements  at  will  or 
by  sufferance  shall  quit  upon  notice  in  writing  from  the  landlord 
at  the  day  named  therein."  "Tenants  by  parol  of  lands,  buildings,  or 
parts  of  buildings,  from  year  to  year,  shall  quit  at  the  end  of  the  year 
upon  notice  in  writing  from  the  landlord,  given  at  least  three  months 
prior  to  the  expiration  of  the  occupation  year.''  Tenants  for  less  than 
a  year  shall  quit  upon  notice  given  at  least  half  the  period  of  the 
term,  not  exceeding  in  any  case  three  months,  prior  to  the  expiration 
of  the  term.  Notices  given  by  the  tenant  to  the  landlord  shall  have 
the  same  effect  for  all  purposes  as  if  given  by  the  landlord  to  the 
tenant. 2^^  Under  this  statute  a  tenant  at  sufferance  is  entitled  to  a  no- 
tice to  quit  and  the  term  "tenant  at  sufferance"  is  used  in  its  technical 
common  law  sense.^^"  The  Supreme  Court  of  the  state  construed  this 
statute  to  mean  that  a  tenant  strictly  at  will  or  by  sufferance  was  en- 
titled to  a  day's  notice  only.  But  if  the  notice  were  unreasonably  short 
the  tenant  might  be  entitled,  after  the  tenancy  was  terminated,  to 
ingress  and  egress  for  the  purpose  of  removing  household  effects  or 
taking  emblements,  without  making  himself  liable  as  a  trespasser.^" 

*' Brightly's    Purdon's     Dig.     St.,  St.    472;    Wilgus   v.   Whitehead,    89 

12th  Ed.,  p.  1163,  §  17.  Pa.  St.  131. 

^^  Lesley   v.    Randolph,    4    Rawle  '^  Gen.  Laws  1896,  ch.  269,  §§  1-5. 

(Pa.)   123;  Boggs  v.  Black,  1  Binn.  ""Johnson  v.  Donaldson,  17  R.  L 

(Pa.)    333;    Fahnestock   v.    Fauste-  107,    20   Atl.    242.      The   "notice   in 

nauer,  5  S.  &  R.   (Pa.)   174;   Logan  writing"   to   terminate   lettings    re- 

V.    Herron,    8    S.   &   R.    (Pa.)    459;  quired  by  Gen.  St.  R.  L,  chap.  221, 

Lloyd  V.  Cozens,  2  Ash.   (Pa.)   131;  is  an  original  notice,  not  a  copy  of 

Parsons  v.  Roumfort,  2  Pears.  (Pa.)  the  notice.     Hence  when  it  appears 

81-  that  the  only  notice  served  on  de- 

"^^  Logan    V.    Herron,    8    S.    &    R.  fendant   was   such   a   copy,    it   was 

(Pa.)   459;   Bedford  v.  McElherron,  held  that  no  notice  had  been  given. 

2  S.  &  R.   (Pa.)  49;  Evans  v.  Hast-  Mathewson   v.    Thompson,   12   R.   L 

ings,  9  Pa.  St.  273.  288. 

*«  Hutchinson    v.    Potter,    11    Pa.  ="  Payton  v.   Sherburne,  15  R.   I. 


§§■  312,   314]  NOTICE   TO   QUIT.  330 

§  312.  South  Carolina. — Every  lease  having  a  definite  period  stated 
for  its  determination  shall  end  absolutely  and  unequivocally  at  that 
time  without  any  notice.  In  a  tenancy  strictly  at  will  proceedings  to 
eject  the  tenant  may  be  instituted  ten  days  after  he  is  notified  to  leave 
the  premises.^''^  In  tenancies  from  year  to  year  three  months  has  been 
substituted  as  the  customary  period  for  notice  in  place  of  six  months, 
which  the  English  law  required.  For  tenancies  of  shorter  continuance, 
which  are  generally  of  less  valuable  tenements,  a  shorter  notice  is 
required.^'^ 

§  313.  South  Dakota. — A  tenancy  or  other  estate  at  will,  however 
created,  may  be  terminated  by  the  landlord's  giving  notice  to  the  ten- 
ant to  remove  from  the  premises  within  a  period  specified  in  the 
notice,  if  not  less  than  one  month.  The  notice  must  be  in  writing 
and  must  be  served  by  delivering  the  same  to  the  tenant  or  to  some 
person  of  discretion  residing  on  the  premises.  If  neither  can  be  found 
notice  can  be  posted  on  the  premises.^''* 

§  314.  Virginia. — "A  tenancy  from  year  to  year  may  be  terminated 
by  either  party  giving  notice  in  writing  prior  to  the  end  of  any  year 
for  three  months,  if  it  be  of  land  within,  and  for  six  months,  if  of 
land  without  a  city  or  town,  of  his  intention  to  terminate  the  same. 
When  such  notice  is  to  the  tenant  it  may  be  served  upon  him  or  upon 
any  one  holding  under  him  the  leased  premises,  or  any  part  thereof. 
When  it  is  by  the  tenant  it  may  be  served  upon  any  one  who,  at  the 
time,  owns  the  premises  in  whole  or  in  part,  or  the  agent  of  such 
owner,  or  according  to  the  common  law.  This  section  shall  not  apply 
where,  by  special  agreement,  no  notice  is  to  be  given ;  nor  shall  notice 
be  necessary  from  or  to  a  tenant  whose  term  is  to  end  at  a  certain 

213,    2    Atl.    300.      The    court   say:  out  more;   but  the  section  adds,  'at 

"The   natural   construction   of   this  the   day  named  therein,'  which,  it 

section    is   that   the   tenant    receiv-  seems  to  us,  clearly  indicates  an  in- 

ing   notice   shall    quit   on   the    day  tention  to  leave  the  length  of  the 

named,  and  that  all  he  can  require  notice  to  the  discretion  of  the  lessor 

is   that   the   notice   shall   give   him  or  owner  giving  it.     To  hold  that 

a  day.     If  this  view  be  correct  the  'notice'    means    'reasonable    notice' 

notices  were  good.     The  defendants  is  to  open  the  door  to   contention 

contend  that  the  construction  is  too  such    as    it    was    the    Intention    of 

strict  and  that  'notice'  means  'rea-  [this]  chapter  ...  to  avert." 
sonable  notice.'  We  should  be  in-  «-Civ.  Code  1902,  §§  2415,  2422. 
clined   to   construe   the   section   so,         ^^  Godard    v.    South    Carolina    R. 

if  the  language  were  that  the  ten-  Co.,  2  Rich.  L.   (S.  Car.)   346. 
ants  'shall  quit  upon  notice  in  writ-        "*  Civ.  Code  1903,  §§  262,  263. 
ing  from  the  lessor  or  owner,'  with- 


331  STATUTORY  PROVISIONS.  [§315 

time."^'^  An  agreement  under  seal  by  a  tenant  that  he  will  surrender 
possession  whenever  a  purchaser  from  the  landlord  requires  it  consti- 
tutes him  a  tenant  at  will,  or  at  sufferance,  and  he  is  not  entitled  to 
six  months'  notice  to  quit.  If  a  tenant  claims  to  hold  adversely  to  his 
landlord  he  is  not  entitled  to  notice.^^"  But  a  tenant  at  will,  as,  for 
example,  a  person  put  in  possession  of  land  under  an  agreement  for 
purchase,  but  who  is  in  default  in  the  payment  of  the  purchase  money, 
is  not  liable  to  be  turned  out  of  possession  by  ejectment  without  pre- 
vious demand  or  notice  by  the  owner.^^^ 

§  315.  Washington. — Tenancy  from  month  to  month  or  from 
period  to  period  on  which  rent  is  payable  may  be  terminated  by  writ- 
ten notice  of  thirty  days  or  more  preceding  the  end  of  any  of  said 
months  or  periods  given  by  either  party  to  the  other.^^^  However,  the 
forcible  entry  and  detainer  statute  renders  ihis  provision  for  thirty 
days'  notice  practically  nugatory  by  providing  that  when  a  lessee  with 
monthly  or  other  periodic  rent  reserved  continue  in  possession  after 
the  end  of  any  such  month  or  period  in  cases  where  the  landlord,  more 
than  twenty  days  prior  to  the  end  of  such  month  or  period,  has  served 
notice  on  him  to  quit,  he  is  guilty  of  unlawful  detainer.^^^  In  passing 
upon  the  length  of  the  notice  it  was  held  to  be  sufficient  to  give  twenty 
days'  notice  prior  to  the  end  of  the  month  or  period,  excluding  the  day 
of  service.  Thus  a  notice  served  the  eleventh  would  be  sufficient  to 
terminate  a  tenancy  at  the  end  of  a  month  having  thirty-one  days.^^" 
Such  a  notice  is  not  invalid  because  it  gives  the  tenant  all  of  the  first 
day  of  the  succeeding  month  in  which  to  vacate.^^^  As  a  result  of  these 
statutes  it  seems  that  where  the  period  between  rent  payment  was 
twelve  months,  or  where  a  tenancy  from  year  to  year  was  created  by 
express  agreement,  the  holding  could  be  terminated  by  twenty  days' 
notice  given  prior  to  the  expiration  of  the  year.  "In  all  cases  where 
premises  are  rented  for  a  specified  time,  by  express  or  implied  con- 
tract, the  tenancy  shall  be  deemed  terminated  at  the  end  of  such 
specified  time."^^^  A  tenancy  at  sufferance  shall  terminate  immedi- 
ately upon  a  demand  for  possession  by  the  owner.^®^ 

=^'Code  1887,  §  2785.  ='»  McGinnis    v.    Genss,    25    Wash. 

""Harrison  v.  Middleton,  11  Grat.  490,  65  Pac.  755;  Ferguson  v.  Hoshi, 

(Va.)    527.  25  Wash.  664,  66  Pac.  105. 

"'  Jones  V.  Temple,  87  Va.  210,  12  '^^  Harris  v.  Halverson,  23  Wash. 

S.   E.   404;    Twyman  v.   Hawley,   24  779,  63  Pac.  549. 

Grat.    (Va.)    512.  =«=  Ball.  Code  1897,  §  4570. 

=^'Ball.  Code  1897,  §  4569.  ^  Ball.  Code  1897,  §  4571. 

=^™Ball.    Code    1897,    §  5527,    sub- 
sec.  2. 


§•§   316,   317]  NOTICE  TO   QUIT.  333 

§  316.  West  Virginia. — "A  tenancy  from  year  to  year  may  be 
terminated  by  either  party  giving  notice  in  writing  to  the  other,  prior 
to  the  end  of  any  year,  for  three  months,  of  his  intention  to  terminate 
the  same.  When  such  notice  is  to  the  tenant  it  may  be  served  upon 
him  or  upon  any  one  holding  under  him  the  leased  premises,  or  any 
part  thereof ;  when  it  is  by  the  tenant,  it  may  be  served  upon  any  one 
who  at  the  time  owns  the  premises  in  whole  or  in  part,  or  the  agent  of 
such  owner,  or  according  to  the  common  law.  This  section  shall  not 
apply  where,  by  special  agreement,  no  notice  is  to  be  given ;  nor  shall 
notice  be  necessary  from  or  to  a  tenant  whose  term  is  to  end  at  a  cer- 
tain time."^®*  Tenants  at  sufferance  are  not  entitled  to  notice  to  quit 
prior  to  the  institution  of  an  action  of  ejectment  against  them.^^^ 

§  317.  Wisconsin. — A  tenancy  at  will  or  by  sufferance  may  be 
terminated  by  the  landlord's  giving  one  month's  notice  in  writing  to 
the  tenant  requiring  him  to  remove  or  by  the  tenant's  giving  one 
month's  notice  in  writing  that  he  shall  remove.  When  the  rent  re- 
served in  a  lease  at  will  is  payable  at  periods  of  less  than  one  month 
such  notice  shall  be  sufficient  if  it  be  equal  to  the  interval  between 
the  times  of  payment.  In  all  cases  of  neglect  or  refusal  to  pay  the  rent 
on  such  a  lease  fourteen  days'  notice  to  remove,  given  by  the  landlord, 
shall  be  sufficient  to  determine  the  lease.^*^  A  tenancy  from  year  to 
year  may  be  terminated  at  the  end  of  any  year  by  either  party  giving 
to  the  other  party  a  notice  in  writing,  not  less  than  thirty  days  prior 
to  the  date  of  such  expiration,  that  he  elects  to  terminate  such  lease 
at  the  end  of  such  year.^*''  iSTotice  shall  be  served  by  delivering  it  to 
the  tenant  or  to  some  person  of  proper  age  residing  on  the  premises. 
If  no  one  can  be  found,  the  notice  may  be  posted  on  the  premises.  At 
the  expiration  of  the  time  required  after  the  service  of  such  notice 
the  landlord  may  reenter  or  proceed  to  recover  possession  by  action  at 
law.^*^  The  thirty  days'  notice  which  is  intended  to  terminate  a  year 
to  year  holding  must  require  the  tenant  to  quit  at  the  end  of  one  of  the 
yearly  periods.^*® 

'^  Code  1899,  ch.  93,  §  5.  N.  W.  523,  that  six  months  notice 

^=  McClung  V.   Echols,    5   W.    Va.  was  necessary  to  terminate  a  ten- 

204.  ancy  from  year  to  year. 

^St.  1898,  §  2183.  ^^'St.   1898,   §   2184. 

^^St.  1898,  §  2187.     This  changed  =*>  Peehl  v.  Bumbaiek,  99  Wis.  62, 

the  existing  law  as  laid  by  the  case  74  N.  W.  545. 
of  Brown  v.  Kayser,  60  Wis.  1,  18 


CHAPTER  V. 


COVENANTS    IN    LEASES. 


1.  Construction  and  Effect,   §§  318- 

335. 

2.  For   Renewal    of    Lease,    §§  336- 

348. 

3.  For    Quiet    Enjoyment,    §§  349- 

371. 

4.  In  Regard   to   Building   and   Im- 

provements, §§  372-381. 


5.  Restricting     Use     of     Premises, 

§§  382-386. 

6.  As  to  Sale  of  Premises,  §§  387- 

388. 

7.  For  Insurance,  §§  389-390. 

8.  For  Repairs,  §§  391-410. 

9.  To  Pay  Taxes,  §§  411-420. 


I.     Construction  and  Effect. 

§  318.  A  covenant  is  an  agreement,  convention  or  promise  be- 
tween two  or  more  parties,  by  deed,  signed,  sealed  and  delivered,  by 
which  either  of  the  parties  pledges  himself  to  the  other  that  some- 
thing is  either  done  or  shall  be  done.^  Blackstone  says  it  is  "a  species 
of  express  contract  contained  in  a  deed  to  do  a  direct  act  or  omit 
one."2  Looking  at  the  matter  from  a  different  point  of  view  it  has 
been  stated  that  any  agreement  under  seal  is  a  covenant,  the  seal 
being  the  distinguishing  feature  between  it  and  a  simple  contract.* 
It  is  true  that  a  covenant  can  only  be  created  by  deed,  but  it  may  be 
as  well  by  deed-poll  as  by  indenture;  for  the  covenantee's  acceptance 
of  the  deed  is  such  an  assent  to  the  agreement  as  will  render  it  bind- 
ing on  him.*  Where  the  instrument  is  in  the  form  of  an  inden- 
ture and  is  intended  to  be  signed  by  the  lessee,  but  he  fails  to  do 
so,  the  effect  of  delivery  is  not  clear.  The  estate  passes  to  the 
lessee,  but  it  has  been  suggested  that  he  is  not  bound  to  perform 
the  covenants  because  the  lessor  waives  his  right  to  insist  on  them  by 
allowing  the  lease  to  be  put  on  record  without  the  lessee's  signature.^ 
"WHiile  it  has  been  held  that  the  technical  action  of  covenant  could 
not  be  maintained  against  a  grantee  under  a  deed-poll,  because  he  had 


^Black's  Law  Diet. 
^3  Bl.  Comm.  155. 
^Randel  v.  President  &c.,  1  Harr. 
(Del.)   151. 
^Greenl.   Cruise   Dig.,   ch.   26,  tit. 


32,  §  3;  Shep.  Touch.  177;  Spauld- 
ing  V.  Hallenbeck,  35  N.  Y.  204;  At- 
lantic Dock  Co.  V.  Leavitt,  54  N.  Y. 
35. 


333 


§  319]  COVENANTS  IN  LEASES.  334 

not  sealed  the  deed/  it  is  commonly  said  that  the  preponderance  of 
authority  is  the  other  way.'^  Piatt,  in  his  treatise  on  covenants,  after 
stating  his  view  that  the  proper  rule  is  not  to  allow  the  action,  goes 
on  to  say,  "Perhaps,  however,  the  doctrine  has  been  too  long  sanc- 
tioned (that  such  an  action  can  be  maintained)  to  be  now  reversed. 
At  all  events,  it  is  an  introduction  of  an  equitable  principle  into  a 
court  of  law,  the  acceptance  of  a  deed  being  considered  equivalent  to 
to  an  actual  execution  by  the  lessee."^  "The  doctrine  is  perfectly  well 
settled,"  said  Chief  Justice  Bigelow,  "that  when  a  party  accepts  a 
deed-poll  or  instrument  in  the  nature  of  a  deed-poll,  by  which  he 
obtains  a  right  or  interest  in  property  on  condition  or  with  a  stipula- 
tion that  he  shall  pay  a  sum  of  money  or  perform  a  certain  duty,  he 
becomes  thereby  bound  to  pay  the  money  or  perform  the  duty.  Not 
having  signed  and  sealed  the  deed,  he  is  not  liable  for  breach  of 
covenant;  but  by  accepting  the  deed  he  assumes  the  performance  of 
the  condition  or  stipulation  from  which  the  law  will  imply  a  promise 
on  which  the  action  may  be  maintained."^ 

§  319.  No  particular  form  of  words  is  necessary  to  constitute  a 
covenant.  Whatever  shows  the  intent  of  the  parties  to  bind  them  to 
the  performance  of  a  thing  stipulated,  may  be  deemed  a  covenant 
without  regard  to  the  form  of  expression  used.  Express  covenants 
may  be  created  by  words  which  at  first  sight  might  appear  to  operate 
rather  as  conditions,  qualifications,  or  defeasances  of  covenants.^'' 
The  law  has  appropriated  no  particular  form  of  expression  to  their 
creation;  and  any  words  are  sufficient  which  show  the  intention  of 
the  parties.^ ^  The  words  of  a  covenant  are  narrowed  or  extended  by 
the  apparent  object  or  intent  of  the  parties.^^  To  ascertain  the  in- 
tention of  the  parties  the  court  may  not  only  look  to  the  instrument 

''Libbey  v.  Staples,  39  Me.  166.  Coal    Co.,    59    111.    App.    595,    602; 

^Hinsdale  v.  Humphrey,  15  Conn.  Smiley    v.    McLauthlin,    138    Mass. 

431;    Burnett  v.  Lynch,  5   B.   &  C.  363;    James   v.    Cochrane,    7    Exch. 

589;    Maule    v.    Weaver,    7    Pa.    St.  170,  s.  c.  8  Exch.  556;    Clapham  v. 

329;   Piatt  on  Cov.  18.  Moyle,  1  Lev.  155;  Parker  v.  Grave- 

^  Atlantic  Dock  Co.  v.  Leavitt,  54  nor,  2  Dy.  150,  And.  19,  1  Co.  155e; 

N.  Y.  35.  Burnett  v.   Lynch,   5    B.    &   C.    589, 

« Piatt  on  Cov.  18.  602. 

*  Maine  v.  Cumston,  98  Mass.  317;  "4    Cruise's    Dig.    447;    Davis    v. 

quoted    in    Rising     Sun    Lodge    v.  Lyman,  6  Conn.  249;  Bull  v.  FoUett, 

Buck,   58  Me.   426;    Huff  v.   Nicker-  5  Cow.    (N.  Y.)   170. 

son,  27  Me.  106.  "  Shep,  Touch.   169;    Browning  v. 

'"  Campbell    v.     Shrum,    3    Watts  Wright,  2  B.  &  P.  13,  1  Inst.  381. 
(Pa.)   60,  63;   Peers  v.  Consolidated 


335  CONSTRUCTION   AND   EFFECT.  [§    319 

itself,  but  also  to  the  circumstances  attending  its  execution.  It  is 
permissible  to  introduce  parol  evidence  of  surrounding  circumstances, 
in  order  to  arrive  at  the  real  intention  of  the  parties  and  to  make  a 
correct  application  of  the  words  of  the  contract  to  the  subject-matter.^' 
The  word  "agree"  in  a  deed  will  make  a  covenant ;  and,  though  in  the 
connection  it  is  applicable  to  both  parties,  it  may  be  referred  to  that 
party  upon  whom  the  doing  or  not  doing  the  thing  agreed  upon  de- 
volves.^* If  a  lessee  for  years  covenants  to  repair,  etc.,  provided 
always  and  it  is  agreed  that  the  lessor  shall  find  great  timber,  this  is 
a  covenant  on  the  part  of  the  lessor  to  find  the  timber  and  not  merely 
a  qualification  of  the  lessee's  covenant.^^  A  mere  recital  of  the  build- 
ings on  the  premises,  contained  in  the  description  clause  in  a  lease, 
does  not  amount  to  a  covenant  that  such  buildings  will  continue  to 
stand  on  the  premises.^^  A  provision  that  full  rent  should  not  be 
charged  till  certain  improvements  were  made  did  not  amount  to  a 
covenant  on  the  part  of  the  lessor  to  make  the  improvement.^'^  And 
a  lease  of  a  brickyard  did  not  raise  an  implied  covenant  on  the  part 
of  the  lessee  to  make  brick, ^^  though  the  lease  was  a  peculiar  one,  and 
the  only  rent  to  be  paid  by  the  lessee  was  twenty-five  cents  per  thousand 
brick.  The  lessor  maintained  that  he  could  recover  damages  for  the 
refusal  of  the  lessee  to  manufacture  brick,  upon  the  ground  that  there 
is  an  implied  covenant  in  the  lease  to  that  effect.  This  depended 
upon  the  intention  of  the  parties.  The  rule  of  construction  is  that 
the  language  must  not  merely  show  that  the  parties  contemplated 
that  the  thing  might  be  done,  but  must  amount  to  a  binding  agree- 
ment upon  them  that  the  thing  shall  be  done.^®  When  parties  have 
entered  into  an  agreement  with  express  stipulations,  the  presumption 
is  that  they  have  expressed  all  the  conditions  by  which  they  intend  to 
be  bound,  and  their  covenants  cannot  be  extended  by  implication, 

"Proprietors    &c.    v.    Hilton,    11  citing   Holder   v,    Taylor,   4    Cruise 

Gray     (Mass.)     407;     Knecken     v.  448. 

Voltz,  110  111.  264;  Vaughan  v.  Mat-  >n  Roll.  Abr.   518;    6   Viner  381, 

lock,  23  Ark.  9.     In  the  latter  case  Tit.  Gov't  C.  22,  23. 

a  lease  described  a  lot  of  land  by  ^^  Branger    v.     Manciet,     30     Cal. 

metes  and  bounds  "together  with  a  624. 

fire-proof     brick     warehouse     built  "Gatch    v.    Garretson,    100    Iowa 

thereon  and  all  singular  and  other  252,  69  N.  W.  550. 

appurtenances      thereunto      belong-  ^*  Smiley  v.  McLauthlin,  138  Mass. 

ing."    This  was  held  to  be  the  cove-  363. 

nant    that    a    warehouse    was    fire-  "  James  v.  Cochrane,  7  Exch.  170, 

proof.  s.  c.  8  Exch.  556;  Moyer  v.  Mitchell, 

"Randel      v.      Chesapeake,      etc.,  53  Md.  171. 
Canal  Co.,   1  Har.    (Del.)    151,  172, 


§'  320]  COVENANTS  IN  LEASES.  336 

unless  the  implication  is  clear  and  undoubted.^**  The  more  reasonable 
implication  seems  to  be  that  it  was  the  imderstanding  of  the  parties 
that  the  lessor  took  the  risk  of  the  lessee's  manufacturing  brick,  and 
intended  to  make  the  rent  dependent  upon  the  success  of  an  experi- 
ment.-^ 

A  covenant  in  a  lease  of  land,  "to  provide  the  said  lessee  with  a 
suitable  right  of  way  to  and  from  said  lot,''  is  not  a  covenant  of  war- 
ranty or  guaranty,  and  it  is  not  performed  by  showing  a  right  of  way 
existed  by  necessity.  The  lessee  is  not  obliged  to  litigate  the  question 
of  right  of  way  by  necessity,  but  may  rely  on  the  lessor's  covenant 
to  supply  a  suitable  right  of  way.  The  lessor's  covenant  is  broken  by 
his  inaction  irrespective  of  any  possible  right  of  way  by  necessity; 
he  could  have  performed  his  covenant  by  purchasing  a  right  of  way. 
He  could  not  perform  it,  however,  by  doing  nothing,  by  leaving  the 
lessee  to  assume  all  the  vexation  and  expense  of  litigation  with  ad- 
joining owners.  To  induce  the  lessee  to  accept  the  lease  the  lessor 
conceded  that  no  suitable  right  of  way  yet  existed  and  covenanted  to 
provide  one.  The  lease  having  been  accepted  with  that  covenant,  the 
lessor  cannot  now  be  heard  to  assert  that  such  a  right  of  way  existed 
already  in  fulfillment  of  the  covenant.  ^^  An  instrument  granting  a 
right  of  way  for  a  log  and  lumber  tramway,  on  condition  the  right 
should  not  extend  longer  than  the  premises  are  used  for  such  pur- 
poses, was  held  to  constitute  a  leasehold  interest  on  condition  sub- 
sequent.^^ 

§  320.  Joint  covenantors. — Wliere  there  are  several  persons  exe- 
cuting a  deed,  it  is  not  necessary  to  affix  a  separate  seal  for  each, 
provided  it  appear  that  the  seal  affixed  was  intended  to  be  adopted  as 
the  seal  of  all.^*  This  has  been  held  where  a  deed  was  executed  by 
an  attorney  for  several  parties,^^  and  where  a  deed  was  executed  by 
one  partner  for  several  members  of  a  firm.^®     If  there  is  but  one 

'"  Aspdin  V.  Austin,  5  A.  «&  E.  (N.  ^^Krapp    v.    Crawford,    16    Wash. 

S.)   671,  48  E.  C.  L.  671;   Rashleigh  524,  48  Pac.  261. 

V.   South  Eastern  R.  Co.,   10  C.  B.  "Van   Alstyne   v.   Van   Slyck,   10 

612,    70    E.    C.    L.    612;    Dermott  v.  Barb.    (N.   Y.)    383;    McDill   v.    Mc- 

Jones,  2  Wall.   (U.  S.)  1,  8.  Dill,  1  Ball.   (U.  S.)   63;  Yarbrough 

=^  Smiley  v.  McLauthlin,  138  Mass.  v.  Monday,  2  Dev.  L.  (N.  Car.)  493; 

363.     A  covenant  in  the  lease  of  a  Flood   v.  Yandes,   1  Blackf.    (Ind.) 

coal  mine  to  pay  royalty  by  a  cer-  102. 

tain    date    did    not    bind    lessee    to  '^Townsend    v.    Hubbard,    4    Hill 

mine  coal  by  that  time,  but  merely  (N.  Y.)  351. 

fixed  a  time  for  payment.     King  v.  ^  Ball  v.  Dunsterville,  4  Term  R. 

Edwards,  32  111.  App.  558.  313;   Mackay  v.  Bloodgood,  9  Johns. 

"Bunker  v.  Pines,  86  Me.  138,  29  (N.  Y.)  285. 
Atl.  959. 


.1 


337  COXSTIIUCTIOX    AND   EFFECT.  [§    331 

seal  to  a  contract,  it  is  presumed  to  be  the  seal  of  the  party  whose 
signature  is  prefixed  to  it,  but  upon  proof  of  its  being  made  by  the 
authority  of  the  other  parties,  it  will  be  held  to  be  their  seal  also.^^ 
Wlien  a  lease  is  executed  by  a  firm  composed  of  several  parties,  the 
covenants  thereof  are  several  as  well  as  joint,  and  each  individual 
member  of  the  firm  is  liable  on  them.^^ 

§  321.  Covenants  have  been  divided  into  express  and  implied  cove- 
nants, and  the  latter  depend  for  their  existence  upon  the  intendment 
and  construction  of  the  law.  There  are  some  words  which  of  them- 
selves do  not  import  an  express  covenant,  yet  being  made  use  of  in 
certain  contracts  have  a  similar  operation,  and  are  called  covenants  in 
law  or  implied  covenants.^^  They  are  implied  by  the  law,  from  the 
use  of  certain  words  having  a  known  legal  operation  in  the  creation 
of  an  estate.  All  covenants  between  lessee  and  lessor  are  either  cove- 
nants in  law  or  express  covenants.^*'  Illustrations  of  this  class  are  to 
be  found  in  the  effect  of  the  words  grant,  demise,  etc.,  from  which 
the  law  implies  a  covenant  that  the  lessee  shall  hold  and  enjoy  the 
premises  against  all  lawful  incumbrances.^^ 

However,  if  a  covenant  is  raised  by  inference  from  a  construction 
of  the  instrument  it  is  an  express  and  not  an  implied  covenant.  The 
operation  of  the  covenant  is  the  same,  whether  the  language  be  precise 
and  express,  or  whether  it  be  a  matter  of  inference  and  construction. 
If  the  parties  agree  to  do  or  not  to  do  a  certain  thing  the  agreement 
is  an  express  covenant  whether  they  have  used  the  word  covenant,  or 
other  words -from  which  their  meaning  is  to  be  inferred.  It  is  not 
the  less  an  express  covenant,  because  the  meaning  is  obscurely  ex- 
pressed, and  therefore  discovered  with  difficulty.^^  Thus  a  covenant 
to  pay  a  certain  sum  of  money  for  land  on  a  certain  day  was  held 

"Stabler  v.  Cowman,  7  Gill  &  J.  v.  Fowle,  9  N.  H.  219,  32  Am.  Dec. 

(Md.)   284.  350;    Grannis  v.  Clark,  8  Cow.    (N. 

'«Dunn  v.  Jaffray,  36  Kan.  408,  13  Y.)    36;    Barney  v.  Keith,  4  Wend. 

Pac.  781.  (N.   Y.)    502;    Stott   v.   Rutherford, 

^  Bacon  Abr.  Covenant,  B.  92   U.   S.   107,   23   L.   Ed.   486.     The 

^"Vaughan's     Reports     188;      Cr.  covenant  arising  out  of  the  words 

Litt.  139,  b.  "yielding  and  paying"  In  a  lease  is 

'^Spencer's     Case,     5     Coke     16;  an  implied  covenant,  and  the  lessee 

Clarke  v.   Samson,   1  Ves.  Sr.  100;  is  not  liable  on  it  for  rents  accruing 

Andrew's  Case,  Cro.  Eliz.  214;  Mer-  after    an   assignment   of   his   term, 

rill  V.  Frame,  4  Taunt.  329;    Shep.  Kimpton  v.  Walker,  9  Vt.  191. 

Touch.   160;    Com.   Dig.  Cov.  A.   4;  ^=  Levering  v.  Levering,  13  N.  H. 

Wells  V.   Mason,   5   111.   84;    Crouch  513. 

Jones  L.  &  T.— 22 


J  322]  COVEXAXTS  IX  LEASES.  338 

to  amount  to  a  covenant  on  the  part  of  the  owner  to  convey  the  land.'' 
A  covenant  by  a  lessee  that  he  would  at  all  times  and  seasons  of  burn- 
ing lime,  supply  the  lessor  with  lime  at  a  stipulated  price,  was  held 
to  be  a  covenant  that  he  would  burn  lime  at  all  such  seasons.'*  And 
a  covenant  in  a  lease  that  the  tenant  will  fold  his  flock  which  he 
shall  keep  on  certain  specified  parts  of  the  premises,  is  bindmg  on 
him  to  keep  a  flock  and  fold  it  on  the  premises.'^  In  another  case 
J  the  lessor  agreed  that  the  lessee  should  hold  and  occupy  the  premises 
'  for  a  certain  term.  The  court  were  of  opinion  that  these  words 
amounted  to  a  general  covenant  for  quiet  enjoyment  during  the 
term.'^ 

§  322.  The  general  rule  for  interpretation  of  covenants  in  a  lease 
is  to  expound  them  so  as  to  give  effect  to  the  actual  intent  of  the  par- 
ties as  collected  from  the  entire  context.'^  "The  scope  and  end  of 
every  matter  is  principally  to  be  considered,  and  if  the  scope  and 
end  of  the  matter  is  satisfied,  then  is  the  matter  itself  and  the  intent 
thereof  also  satisfied."'®  "And  the  words  of  an  indenture  are  the 
words  of  either  party,'*  as  the  matter  is  put  in  Touchstone,  "and  albeit 
they  be  spoken  as  the  words  of  the  one  party  only,  yet  they  are  not 
his  words  alone,  but  may  be  applied  to  the  other  party  if  they  do  more 
properly  belong  to  him ;  for  every  word  that  is  doubtful  shall  be  ap- 
plied and  expounded  to  be  spoken  by  him  to  whom  they  will  best 
agree  according  to  the  intent  of  the  parties,  and  they  shall  not  be 
taken  most  strongly  against  one  or  beneficially  for  the  other,  as  the 
words  of  a  deed-poll  shall."'^  In  construing  a  covenant  in  a  lease  by 
indenture,  the  words  of  the  covenant  are  to  be  taken  however  set 
down  in  the  lease  as  the  words  of  the  parties  to  whom  they  properly 
belong,  or  if  properly  belonging  to  both,  as  the  words  of  both ;  the 
words  of  an  indenture  being  the  words  of  either  party  and  not  to  bo 
taken  most  strongly  against  the  one  or  beneficially  for  the  other, 
as  the  words  of  a  deed-poll  are.  Under  this  rule  it  was  held  that  the 
clause  "the  said  gangway  to  be  kept  open  for  the  benefit  of  the  lot 
hereby  leased  and  also  of  the  lots  hereunto  adjoining"  was  a  covenant 

^  Pordage  v.  Cole,  1  Saund.  319,  i.  150  111.  344,  37  N.  E.  937,  affirming 

^Shrewsbury    v.    Gould,    2    B.    &  39  111.  App.  453;    Peers  v.  Consoli- 

Aid.  487.  dated    Coal    Co.,    59    111.    App.    595; 

^Webb  v.  Plummer,  2  B.  &  Aid.  Walker  v.  Physick,  5  Pa.  St.  193. 

746.  ^*  Reniger    v.    Fogossa,    Plowd.    1» 

^  Ellis  v.  Welch,  6  Mass.  246.  18. 

"Consolidated  Coal  Co.  v.  Peers,  ^Sheppard's  Touchstone  52. 


339  CONSTEUCTION  AND  EFFECT.  [§  322 

of  the  lessee  as  well  as  of  the  lessor.^''  Where  an  owner  of  land  has 
covenanted  to  lease  for  use  as  a  pasture  and  covenanted  to  furnish 
a  sufficient  supply  of  water,  this  is  a  contract  for  as  much  water  as  is 
required  for  the  cattle  the  pasture  will  support.*^  The  same  principle 
was  applied  where  the  lessor  of  a  dairy  farm  agreed  to  furnish  cows 
fit  for  dairying,  "the  number  not  limited,"  at  so  much  per  annum 
for  each  cow.  This  was  construed  to  bind  the  lessor  to  furnish 
enough  cows  to  stock  the  land  leased.*^  Under  a  lease  reserving  one- 
third  the  net  products  of  a  dairy,  the  lessee  was  bound  to  pay  the  cost 
of  labor  employed  to  make  butter,  but  could  deduct  the  cost  of  trans- 
portation to  market.*^  On  leasing  a  farm  and  stock  on  the  shares 
larger  articles,  like  horses,  tools,  etc.,  should  be  returned  in  kind, 
but  stock,  such  as  hogs,  calves  and  chickens,  need  only  be  returned  to 
an  equal  value  and  of  like  description.** 

The  positive  affirmation  of  a  covenant  is  not  qualified  by  the  state- 
ment of  its  purpose  as  for  the  benefit  of  the  lot  leased  and  of  the 
adjoining  lots.  Such  an  avowal  of  the  purpose  of  a  positive  covenant 
constitutes  the  purpose  neither  a  condition  nor  limitation  of  the 
covenant;  but  simply  declares  the  motive  or  inducement  of  the 
parties  to  enter  into  it.  The  motive  may  have  been  a  wise  or  foolish 
one, — it  may  exist  or  it  may  have  ceased  to  exist, — yet  the  covenant, 
if  it  be  lawful,  remains  unaffected.*^  A  clause  in  a  lease  that  the 
lessor  shall  have  the  right  to  sell  the  demised  premises  at  any  time 
covered  by  the  lease,  by  giving  the  lessor  two  months'  notice  and  the 
privilege  of  purchasing,  is  enabling  and  not  restrictive.  Independ- 
ently of  and  notwithstanding  this  clause  he  may  sell  the  reversion. 
The  whole  effect  of  the  clause  is  to  enable  him  to  terminate  the 
lease,  and  sell  the  whole  estate,  first  giving  the  lessee  the  oppor- 
tunity of  purchasing.*^  A  provision  that  in  case  of  a  sale  of  the  leased 
property  by  the  lessor,  he  should  forfeit  to  the  lessee  a  certain  sum 
as  damages,  implies  an  agreement  that  the  lessor  may  terminate  the 
lease  by  such  sale.*^ 

•    ^"Beckwith  v.  Howard,  6  R.  I.  1;  ther  expense  for  labor,  he  was  lia- 

Randell   v.    President   &c.,    1    Harr.  ble  for  additional  work  not  includ- 

(Del.)   151.  ed  in  specifications  and  done  at  his 

"  Crabtree  v.  Hagenbaugh,  25  111.  request.      Barnes    v.     Hogate,    103 

233.  Iowa  743,  72  N.  W.  688. 

'=  Griffiths   v.   Henderson,    49    Cal.  "  Brock  way  v.  Rowley,  66  111.  99. 

566.      See   also.    Smith   v.   Niles,   20  '=  Beckwith  v.  Howard,  6  R.  I.  1. 

Vt.  315,  49  Am.  Dec.  782.  *«  Callaghan  v.   Hawks,  121  Mass. 

"Reybold    v.    Reybold,    6    Houst.  298. 

(Del.)    420.     Under   lease   for   crop  "Johnson  v.  King,  83  Wis.  8,  53 

rent  exempting  landlord  from   fur-  N,  W.  28. 


§  323]  COVENANTS  IN  LEASES.  340 

§  323.  "Covenants  are  either  dependent,  concurrent  and  mutual, 
or  independent.  The  first  depends  on  the  prior  performance  of  some 
act  or  condition,  and  until  the  condition  is  performed,  the  otlier  party 
is  not  liable  to  an  action  on  his  covenant.  In  the  second,  mutual  acts 
are  to  be  performed  at  the  same  time,  and  if  one  party  is  ready,  and 
offers  to  perform  his  part,  and  the  other  refuses  to  perform  his,  he 
who  is  ready  and  offers,  has  fulfilled  his  engagement  and  may  main- 
tain an  action  for  the  default  of  the  other,  though  it  is  not  certain 
that  either  is  obliged  to  do  the  first  act.  The  third  sort  is,  where 
either  party  may  recover  damages  from  the  other  for  the  injury  he 
may  have  received  by  a  breach  of  the  covenants  in  his  favor ;  and  it  is 
no  excuse  for  the  defendant  to  allege  a  breach  of  the  covenants  on  the 
part  of  the  plaintiff,"*^  Wliere  the  parties  are  to  perform  concurrent 
acts,  and  the  plaintiff's  act  forms  the  basis  or  consideration  of  the 
defendant's  act,  the  defendant  may  always  excuse  himself  by  relying 
on  the  failure  of  the  plaintiff.*'*  But  where  the  defendant's  act  rests 
upon  an  independent  consideration,  he  cannot  excuse  himself  by 
showing  a  failure  to  perform  on  the  part  of  the  plaintiff.^**  He  has 
not  made  performance  by  the  other  party  a  condition  precedent  to  his 
liability;  but  has  trusted  to  a  remedy  by  action  on  the  agreement.^^ 
If  covenants  are  to  pay  rent  by  instalments  and  to  pay  taxes  as  they 
become  due,  each  goes  only  to  a  part  of  the  consideration  of  the  per- 
formance of  the  contract  on  the  part  of  the  lessor  and  cannot,  there- 
fore, be  mutually  dependent  covenants;  covenants  to  be  dependent 
must  be  mutual,  and  go  to  the  entire  consideration.^^  The  ordinary 
covenant  of  a  landlord  to  make  repairs  is  an  independent  covenant, 
and  a  mere  failure  to  make  repairs  to  the  extent  of  diminishing  the 
value  of  the  use  of  the  premises  without  destroying  their  value,  does 
not  defeat  the  right  of  the  lessor  to  recover  rent.^^    In  a  lease  of  cot- 

'' Bailey  v.  White,  3  Ala.  330,  per  Couch  v.  Ingersoll,  2  Pick.   (Mass.) 

Collier,  C.  J.  292;     Thruston    v.    Minke,    32    Md. 

"Lawrence  v.   Dole,   11   Vt.   549;  487;     Hamilton    v.    Thrall,    7    Neb. 

Day  V.  Essex  Co.  Bank,  13  Vt.  97;  210. 

Morris  v.   Sliter,   1   Denio    (N.  Y.)  ^=  Butler   v.   Manny,    52   Mo.    497; 

59.  Smith  v.  Busby,  15  Mo.  387;  Bennet 

=«Day  V.  Essex  Co.  Bank,  13  Vt.  v.    Pixley,    7    Johns.    (N.    Y.)    249; 

97;  Boone  v.  Eyre,  1  H.  Bl.  273,  n.;  Robb  v.  Montgomery,  20  Johns.  (N. 

Pordage  v.  Cole,  1  Saund.  319,  i.  Y.)    15;   Tinney  v.  Ashley,  15  Pick. 

'^Morris    v.    Sliter,    1    Denio    (N.  (Mass.)   546;   Lewis  v.  Chisholm.  68 

Y.)    59;    Northrup    v.    Northrup,    6  Ga.   40;    Pordage  v.   Cole,   1    Sannd. 

Cow.  (N.  Y.)  296;  West  v.  Emmons,  319,  i. 

5    Johns.    (N.    Y.)    179;    Parker   v.  =^^  Lewis  v.  Chisholm,  68  Ga.  40. 
Parmele,    20    Johns.    (N.    Y.)    130; 


341  CONSTRUCTION  AND  EFFECT.  [§  324 

tage  as  a  bathing  house,  it  was  urged  that  a  covenant  by  the  lessee  to 
repair  was  dependent  on  an  implied  agreement  by  the  lessor  to  keep 
a  hotel  and  adjoining  premises  in  suitable  repair  for  a  bathing  place. 
This  implication  was  based  upon  a  recital  in  the  lease,  which  stated 
that  "the  lessor  has  established  a  watering  or  bathing  place,  and  has 
caused  it  to  be  laid  off  in  blocks,  .  .  .  and  whereas  it  is  his 
object  that  said  grounds  shall  be  kept  in  good  order,  etc."  In  this 
there  was  no  covenant,  either  express  or  implied,  that  the  lessor 
would  build  or  maintain  a  hotel  or  keep  the  grounds  in  good  order 
suitable  for  a  bathing  place.  Such  was  doubtless  his  intention,  as 
expressed  in  the  recital ;  but  this  was  intended  only  for  his  own  bene- 
fit, and  whether  he  would  continue  to  do  so  or  not  was  left  to  depend 
entirely  on  his  own  will.  The  tendency  of  modern  decisions  is  not  to 
imply  covenants  which  might  and  ought  to  have  been  expressed  if 
intended.  A  covenant  is  never  implied  that  a  lessor  will  make  any 
repairs.^*  Here  the  supposed  implied  covenant  on  the  part  of  the 
lessor  is  not  for  repairs  to  the  property  demised,  but  relates  to  other 
property  belonging  to  the  lessor.  In  no  case  has  a  covenant  of  that 
kind  been  implied.  By  the  terms  of  the  lease  the  right  of  the  lessee 
became  forfeited,  if  the  cottage  should  be  suffered  to  remain  out  of 
repair,  and  this  duty  of  the  lessee  to  repair  was  contingent  on  no 
undertaking  or  agreement  of  the  lessor,  but  was  an  absolute  obliga- 
tion.^^ 

§  324.  Covenants  in  an  agreement  will  be  construed  as  conditions 
precedent  or  as  independent  agreements,  according  to  the  intention  of 
the  parties  and  the  good  sense  of  the  case,  and  technical  words  must 
give  way  to  such  intention.^*' 

Therefore,  in  determining  how  to  class  covenants,  the  safest  and 
best  course  is  to  ascertain  what  was  the  intention  of  the  parties  from 
the  instrument  they  have  executed,  and  then  to  give  the  covenants 
such  a  construction  as  will  carry  this  intention  into  effect.^^  If  it 
appears,  on  the  whole,  that  any  substantial  part  of  the  agreement 

=' Sheets   v.    Selden,   7    Wall.    (U.  "Rowland     v.     Leach,     11     Pick. 

S.)  416,  423.  (Mass.)      151,      154;      Manning     v. 

=^Moyer  v.  Mitchell,  53  Md.  171.  Brown,   10   Me.   49;    Lunn   v.    Gage, 

■^^  Parmelee  v.  Oswego  &c.  R.  Co.,  37    111.    19;    Hill    v.    Bishop,    2    Ala. 

6  N.  Y.  74;    Palmer  v.  Meriden  &c.  320;    Moyer  v.  Michell,  53  Md.  171; 

Co..  188  111.  508,  59  N.  E.  247;  affirm-  Kingston  v.   Preston,   2   Doug.   689; 

ing  88  111.  App.  485;  Davis  v.  Wiley,  Glazebrook  v.  Woodrow,  8  Term  R. 

,4    111.    234;    Slocum   v.    Despard,    8  371;  Piatt  on  Covenants,  72  to  80. 

Wend.  (N.  Y.)  615. 


§•  324]  COVENANTS   IN   LEASES.  343 

on  one  side  is  to  be  performed  only  on  condition  of  performance  on 
the  other,  the  court  is  bound  to  construe  the  covenants  accordingly, 
whatever  may  be  the  order  in  which  they  are  placed  in  the  instrument 
or  the  manner  in  which  they  are  expressed,^^  Because  a  covenant 
goes  only  to  a  part  of  the  consideration  it  is  not  necessarily  inde- 
pendent, the  dependence  or  independence  of  covenants  being  deter- 
mined by  the  order  of  time  in  which  performance  is  required.^^ 
But  where  a  covenant  goes  only  to  part  of  the  consideration  on  both 
sides,  and  a  breach  of  such  covenant  may  be  paid  for  in  damages,  it 
is  an  independent  covenant,  and  an  action  may  be  maintained  for  a 
breach  of  the  covenant  by  the  other  party  without  averring  performance 
in  the  declaration.*'*'  So,  if  there  are  a  number  of  covenants  on  each 
side,  the  enjoyment  by  one  party  of  a  substantial  performance  by  the 
other  has  been  held  to  prevent  his  insisting  upon  the  non-performance 
of  that  which  was  originally  a  condition  precedent.®^  A  covenant  by 
a  tenant  to  pay  rent  and  by  a  landlord  to  repair  are  regularly  held  to 
be  independent  covenants,  and  therefore,  a  failure  to  repair  does  not 
work  a  forfeiture  of  the  rent,  but  merely  gives  a  right  of  action  or  of 
recoupment,  and  a  failure  to  repair  does  not  at  common  law  bar  an 
action  for  rent.*'^  The  omission  of  the  landlord  to  perform  his  cove- 
nant does  not  amount  to  an  eviction  and  is  no  bar  to  his  claim  for 
rent.  The  lessee's  remedy  is  either  a  plea  of  failure  in  diminution  of 
the  rent  or  an  action  to  recover  damages  for  the  breach  of  the  cove- 
nant"^ or  to  make  such  repairs  himself  as  are  suitable  and  necessary 
and  charge  their  cost  to  the  lessor.*'*  Covenants  to  pay  rent  and  taxes 
and  to  buy  improvements  at  the  end  of  the  term  have  also  been  held 
to  be  independent.  The  mere  recital  in  the  lease  that  the  agreements 
in  the  lease  to  be  performed  by  the  lessees  being  performed,  the  lessor 
will  at  the  expiration  of  the  lease  pay  for  the  improvements,  does  not 
have  the  effect  to  make  independent  covenants  in  the  lease  dependent. 

"*  Gardiner    v.    Corson,    15    Mass.  Christopher  v.  Austin,  11  N.  Y.  216; 

500.  Watts  V.  Coffin,  11  Johns.    (N.  Y.) 

=^  Grant  v.  Johnson,  5  N.  Y.  247.  495;   Etheridge  v.  Osborn,  12  Wend. 

^Nelson  v.  Oren,  41  111.  18;  White  (N.  Y.)   529,  13  Wend.  339;   Tibbits 

V.  Gillman,   43   111.   502;    Newson  v.  v.  Percy,  24  Barb.    (N.  Y.)   39;   Hill 

Smythies,  3  H.  &  N.  840.  v.    Bishop,    2    Ala.    320;    Wright    v. 

"Fust  V.  Dowie,  5  B.  &  S.  20,  34  Lattin,  38  111.  293;   Belfour  v.  Wes- 

L.  J.  Q.  B.  127;   Carter  v.  Scargill,  ton,  1  Term  R.  310;   Huff  v.  Mark- 

L.    R.    10    Q.    B.   564;    Wiley   v.    In-  ham,   70   Ga.   284;    Allen   v.   Pell,   4 

habitants  &c.,  150  Mass.  426,  23  N.  Wend.   (N.  Y.)   505;   §§  672-674. 
E.  311;  Lober  v.  Bangs,  2  Wall.   (U.         «^  Etheridge  v.   Osborn,   12   Wend. 

S.)  -728.  (N.  Y.)  529. 

«2  Lewis  V.   Chisholm,  68   Ga.   40;         "Lewis  v.  Chisholm,  68  Ga.  40. 


343  CONSTRUCTION"  AND  EFFECT.       [§§  335,  336 

A  provision  for  a  penalty  for  failure  to  pay  rent  for  sixty  days  shows 
that  the  covenants  to  pay  rent  and  taxes  are  independent  of  the  cove- 
nant to  pay  for  improvements  at  the  end  of  the  term.*'^ 

§  325.  Violations  of  independent  covenants  by  a  landlord  will  not 
require  an  injunction  to  restrain  a  proceeding  to  dispossess  a  tenant 
holding  over;  especially  is  this  true  in  the  absence  of  any  charge  of 
insolvency  on  the  part  of  the  person  against  whom  the  injunction  is 
sought.*'^  This  question  arose  in  a  case  where  a  landlord  brought  his 
statutory  remedy  to  remove  the  tenant  from  the  premises  for  non- 
payment of  rent.  The  tenant  filed  a  bill  in  equity,  alleging  that  the 
contract  of  rent  was  upon  condition  that  the  landlord  would  repair 
the  premises,  but  that  he  had  not  done  so,  and  they  were  not  tenant- 
able,  and  that  the  tenant  had  been  damaged;  that  the  landlord  was 
insolvent  and  the  tenant,  by  reason  of  his  poverty,  was  unable  to  give 
the  bond  and  security  on  filing  a  counter  affidavit,  as  required  by  law. 
Therefore,  he  prayed  an  injunction  restraining  the  landlord  from 
turning  him  out  of  possession.  A  demurrer  to  this  bill  was  sustained. 
"Inasmuch  as  the  law  makes  no  exception,"  said  Warner,  J.,  "as  to 
the  eviction  of  a  tenant  who  is  unable  to  give  bond  and  security,  on 
account  of  his  poverty,  a  court  of  equity  cannot  make  one,  but  is  as 
much  bound  by  the  positive  law  of  the  land  in  such  cases  as  a  court 
of  law  would  be.  Equity  follows  the  law,  where  the  rule  of  law  is  ap- 
plicable, and  the  analogy  of  the  law  where  no  rule  is  directly  ap- 
plicable. The  statute  law  of  Georgia  in  relation  to  landlord  and 
tenant  cannot  be  altered  or  changed  by  simply  changing  the  forum 
in  which  the  remedy  is  sought."^'^ 

§  326.  The  distinction  between  a  covenant  and  a  condition  exists 
even  when  the  agreement  is  to  surrender  the  property.  Thus  a  cove- 
nant to  surrender  premises  upon  a  certain  contingency  does  not  of 
itself  give  the  lessor  a  right  to  reenter  upon  the  happening  of  the 
contingency.  Such  a  stipulation  is  not  a  .condition,  which  upon 
reentry  by  the  lessor,  determines  the  lease,  but  a  covenant,  the  breach 
of  which  does  not  determine  the  lease,  only  gives  the  lessor  a  right 
of  action  to  recover  damages  of  such  breach.*'^  If  the  lessee  cove- 
nants  to   surrender  possession  on  his   failure  to   pay   the   rent   or 

«' Butler   v.   Manny,   52    Mo.    497;  "'Wheeler    v.    Dascomb,    3    Cush. 

Strohmeyer   v.   Zeppenfeld,    28    Mo.  (Mass.)    285;    Sloan   v.   Cantrell,   5 

App.  268.  Cold.     (Tenn.)     571;     Bergland     v. 

"''Huff  V.  Markham,  70  Ga.  284.  Frawley,  72  Wis.  559,  40  N.  W.  372; 

"Hall  V.  Holmes,  42  Ga.  179.  Willson  v.  Phillips,  2  Bing.  13. 


§•  327]  COVENANTS   IN   LEASES.  344 

perform  any  of  the  covenants  of  the  lease,  no  right  under  this  con- 
tract is  given  the  lessor  to  enter  upon  the  premises,  the  only  remedy 
lor  such  failure  is  by  action  on  the  covenant.®''  If  one  make  a  lease 
for  years  by  indenture,  provided  always,  and  it  is  covenanted  and 
agreed  between  the  parties  that  the  lessee  shall  not  alien,  this  is  both 
a  condition  and  covenant.'"  If  the  power  of  reentry  for  the  breach 
of  a  covenant  not  to  assign  be  added  to  such  -covenant,  it  has  the  force 
of  a  condition."^  But  where  a  lessee  was  to  pay  as  rent  a  portion 
of  the  proceeds  of  his  business,  a  stipulation  that  he  would  furnish  the 
lessor  with  statements  of  the  business  monthly,  or  oftener  if  required, 
took  effect  as  a  covenant  and  not  as  a  condition.'^^  A  clause  in  a  lease 
to  the  effect  that  "Said  lessee  doth  agree  to  deliver  up  said  premises 
.  .  .  on  three  months'  notice,  by  said  lessor  paying  him  a  certain 
sum"  is  not  a  condition  but  a  covenant.''^  It  was  stipulated  in  another 
lease  that  the  lessees  should  make  certain  improvements  by  a  specified 
time,  and  the  lessees  further  agreed  to  forfeit  the  lease  if  they  for- 
feited any  of  its  stipulations.  This  was  held  to  be  a  condition  and 
not  a  mere  covenant.'^* 

§  327.  The  apt  words  of  limitation  are  while,  as  long  as,  until,  or 
during;  as  when  land  is  granted  to  a  man  as  long  as  he  is  parson,  or 
while  he  continues  unmarried,  or  until,  out  of  the  rents  and  profits, 
he  shall  have  made  $500,  and  the  like;  or  if  it  is  declared  in  the  lease, 
that  the  same  shall  expire  on  the  happening  of  any  contingency.  In 
such  cases,  whenever  the  contingency  happens,  the  lease  is  deter- 
mined by  its  own  limitation,  without  any  entry  or  other  act  to  be  done 
by  the  lessor.  But  when  an  estate  is,  strictly  speaking,  on  condition 
in  deed,  the  law  permits  it  to  endure  beyond  the  time  when  the  con- 
tingency happens,  unless  the  grantor,  or  his  heirs'  or  assigns,  take 
advantage  of  the  breach  of  the  condition,  and  make  either  an  entry 
or  claim  in  order  to  avoid  the  estate. '^^  Where  the  provision  was  that 
after  the  breach  of  the  condition  by  the  lessee's  non-performance  of 

^  Dennison     v.     Read,     3     Dana  "  Wheeler    v.    Dascomb,    3    Cush. 

(Ky.)    586.  (Mass.)  285. 

'"Verplanck  v.  Wright,  23  Wend.  "^Winn  v.   State,  55  Ark.  360,  18 

(N.  Y.)  506,  citing  Bacon's  Abr.  tit.  S.  W.  375. 

Condition,  G.  Co.  Litt.  203,  b.;  Ship.  ■'  2  Black.  Com.  155;   Fifty  Asso- 

Touch.  122.  ciates  v.  Rowland,  11  Mete.  (Mass.) 

'^Kew  V.  Trainor,  150  111.  150,  37  99;    Wheeler   v.    Dascomb,    3    Cush. 

N.  E.  223,  50  111.  App.  629.  (Mass.)   285;   4  Kent  132. 

'=  Texas  &c.  Co.  v.  Lawson,  10  Tex. 
Civ.  App.  491,  31  S.  W.  843. 


345  CONSTRUCTION  AND  EFFECT.  [§  328. 

any  of  his  covenants,  the  lessors  may,  lawfully,  immediately  or  at 
any  time  whilst  such  neglect  or  default  continues,  and  without  further 
notice  or  demand,  enter  into  and  upon  the  said  premises,  the  lessee's 
estate  continued  until  entry,  notwithstanding  the  breach  of  the  condi- 
tion. The  estate  of  the  lessee  was  not  to  cease  or  become  forfeited 
by  his  non-performance  of  the  condition,  before  the  entry  of  the 
lessors;  and  if  no  such  entry  had  been  made,  the  estate  of  the  lessee 
would  have  continued  till  the  end  of  the  term.  So,  if  the  lessors  had 
accepted  rent  in  arrear,  it  would  have  been  a  waiver  of  the  forfeiture.'^® 
Lord  Coke  has  said  that  if  there  be  express  words  of  condition  an- 
nexed to  the  estate,  it  cannot  be  construed  a  limitation,'^''  But  this 
rule  was  denied  by  Lord  Hale  to  be  the  rule  of  law  in  all  cases,'' ^ 
and  there  seems  to  be  a  well  founded  exception  to  the  general  rule 
of  construction,  that  although  the  words  be  proper  to  create  a  condi- 
tion, yet,  if  upon  the  non-performance  thereof,  the  estate  be  limited 
over  to  another  person,  this  shall  be  a  limitation;  for  it  shall  not  be 
in  the  power  of  the  grantor  or  lessor,  by  his  not  claiming  or  entering, 
to  defeat  the  interest  of  such  person,''^ 

§  328.  Running  of  covenants. — The  common  law  restriction  that 
covenants  would  not  run  with  the  reversion**'  was  removed  by  the  stat- 
ute of  Henry  Eighth,  which  gave  an  action  in  such  case  both  for  and 
against  the  assignee  of  the  reversion.^^  While  the  words  of  this  act  are 
general,  it  was  held  to  extend  only  to  covenants  which  touch  or  concern 
the  thing  demised  and  not  to  collateral  covenants.*^  In  order  that  the 
assignee  may  be  liable  on  the  covenants  in  a  lease,  the  covenants  must, 
therefore  run  with  the  land ;  must  be  connected  with,  be  attached  to,  or 
inhere  in  the  land.  Whether  a  covenant  runs  with  the  land  depends 
in  the  first  place  upon  the  nature  and  character  of  the  particular  cove- 
nant and  of  the  estate  demised,  as  connected  with  the  respective  rights 

'"  Fifty  Associates  v.  Howland,  11  from  choice  between  a  lord  and  vas- 

Metc.   (Mass.)   99.  sal;    which  relationship  the   former 

"  Portington's  Case,  10  Co.  35,  41.  could  not  transfer  to  another  with- 

■*  Lady  Anne  Fry's  Case,  1  Vent,  out   the    latter's    consent."      Hadley 

199,  203.  V.  Berners,  97  Mo.  App.  314,  322,  71 

™2  Wooddeson,  143,  144;   2  Crabb  S.  W.  451. 
on   Real   Prop.,    §   2136;    Stearns  v.         "32  Hen.  VIII,  c.  34. 
Godfrey,  16  Me.  158.  ^=  Spencer's     Case,     5     Coke     16; 

'""According     to      the      accepted  Webb   v.   Russell,   3    Term   R.   393; 

opinion,  no  covenants  ran  with  the  Bream     v.     Dickerson,     2     Humph, 

reversion   at   common   law.   because  (Tenn.)   126;  Hadley  v.  Berners,  97 

of    feudal    reasons    connected    with  Mo.  App.  314,  71  S.  W.  451;   Dolph 

fealty,  or  the  personal  tie  created  v.  White,  12  N.  Y.  296,  302, 


§  328]  COYEXAXTS  IX  LEASES.  346 

of  lessor  and  lessee  in  reference  to  the  subject-matter  of  the  covenant, 
and  in  the  next  place  upon  the  intent  of  the  parties  in  the  creation  of 
the  estate  as  shown  by  the  language  of  the  instrument  creating  it.*^ 

A  covenant  is  said  to  run  with  the  land  when  either  the  liability  to 
perform  it  or  the  right  to  take  advantage  of  it  passes  to  the  assignee 
of  that  land,  and  to  run  with  the  reversion  when  either  the  liability  to 
perform  it  or  the  right  to  take  advantage  of  it  passes  to  the  assignee  of 
such  reversion.  The  covenants  to  be  within  the  statute  must  be  such 
as  touch  the  thing  demised,  and  are  not  collateral  to  it,  as  to  repair, 
for  quiet  enjoyment,  and  to  surrender  possession  in  good  repair.^* 
Familiar  examples  of  covenants  by  the  lessee  which  run  with  the  land 
are  covenants  to  pay  rent  and  covenants  to  pay  assessments  or  taxes  on 
the  demised  premises.®^ 

The  question  whether  a  covenant  runs  with  the  reversion  by  virtue 
of  the  statute  of  Henry  VIII  is  not  to  be  confused  with  the  difEerent 
one  as  to  the  covenants  attaching  a  burden  or  a  right  to  land  at  com- 
mon law  irrespective  of  privity  or  the  mention  of  assigns,  after  the 
analogy  of  commons  or  easements  or  the  yet  different  one  as  to  the 
transfer  of  the  benefit  of  warranties  or  covenants  for  title  to  assigns, 
who  become  privies  in  estate  with  the  original  covenantee.  As  to 
cases  not  coming  within  the  statute  of  Henry  YIII  it  is  generally 
held  that  when  the  covenant  is  of  a  nature  to  inhere  in  and  follow  the 
land,  the  benefit  of  it  will  run  with  the  land  into  the  hands  of  subse- 
quent grantees  of  the  covenantee,  but  the  converse  is  not  true.  The  bur- 
den of  the  covenant  will  not  follow  the  land  into  the  hands  of  the 
covenantor's  grantee.  Thus  where  an  owner  in  fee  of  a  building  con- 
veyed the  top  story  absolutely  for  a  perpetual  annual  rent  and  cove- 

^'Masury  v.   Southworth,   9   Ohio  Cush.  (Mass.)  442;  Mason  v.  Smith, 

St.  340.  131     Mass.     510;      Constantine     v. 

«*  Scheldt  V.  Belz,  4  111.  App.  431.  Wake,  1  Sweeny   (N.  Y.)   239;   Post 

«=  Salisbury    v.    Shirley,    66    Cal.  v.  Kearney,  2  N.  Y.  394,  51  Am.  Dec. 

223,  5  Pac.  104;   Ellis  v.  Bradbury,  303;  Smith  v.  Harrison,  42  Ohio  St. 

75   Cal.    234,   17   Pac.    3;    Carley   v.  180;   Fennell  v.  Guffey,  139  Pa.  St. 

Lewis,    24    Ind.    23;     Edmonds    v.  341,  20  Atl.  1048;   Bradford  Oil  Co. 

Mounsey,  15  Ind.  App.  399;   Breck-  v.  Blair,  113  Pa.  St.  83,  4  Atl.  218, 

enridge    v.    Parrott,    15    Ind.    App.  57  Am.  R.  442;   State  v.  Martin,  14 

411;     Hogg    v.    Reynolds,    61    Neb.  Lea  (Tenn.)  92;  Shaw  v.  Partridge, 

758,  86  N.  W.  479;   Darmsteatter  v.  17  Vt.  626,  §  411. 
Hoffman,    120    Mich.    48,    78    N.    W.         ^°  Jones  v.  Parker,  163  Mass.  564, 

1014;  Donelson  v.  Polk,  64  Md.  501;  40  N.  E.   1044;    Norcross  v.   James, 

Hendrix    v.    Dickson,    69    Mo.    App.  140  Mass.  188,  2  N.  E.  946;   Middle- 

197;    Grundin    v.    Carter,    99    Mass.  field   v.   Church   Mills   &c.   Co.,   160 

15;  Trask  v.  Graham,  47  Minn.  571,  Mass.  267,  35  N.  E.  780. 
50  N.  W.   917;    Towey  v.  Wallis,  3 


I 


347  CONSTRUCTION   AND  EFFECT.  [§    329 

nantecl  to  repair  the  roof,  the  burden  of  this  covenant  did  not  run  with 
a  grant  of  the  entire  parcel  so  as  to  make  the  grantee  personally  liable 
on  the  covenant,  and  there  was  no  remedy  at  law  against  him.  But  in 
many  instances  in  eases  of  this  character  equity  has  furnished  relief 
against  such  grantee  by  declaring  the  burden  of  the  covenant  a  lien 
upon  the  land  itself.  ^'^ 

§  329.  Rule  in  Spencer's  ease. — "Wlien  the  covenant  extends  to  a 
thing  in  esse  parcel  of  the  demise,  the  thing  to  be  done  by  force  of  the 
covenant  is  qiwdammodo  annexed  and  appurtenant  to  the  thing  de- 
mised, and  shall  go  with  the  land  and  shall  bind  the  assignee  though 
he  be  not  bound  by  express  words ;  but  when  the  covenant  extends  to  a 
thing  which  is  not  in  being  at  the  time  of  the  demise  made,  it  cannot 
be  appurtenant  or  annexed  to  the  thing  which  hath  no  being  .  .  . 
and  therefore  shall  bind  the  covenantor  .  .  .  and  not  the  as- 
signee." However,  if  the  lessee  had  covenanted  for  himself  and  his 
assigns  for  something  to  be  done  upon  some  part  of  the  thing  demised, 
that  would  bind  the  assignee  even  though  the  covenant  extended  to  a 
thing  to  be  newly  made,  for  the  assignee  is  to  take  the  benefit  of  it,  and 
therefore  he  is  bound  by  the  express  words.^^ 

This  has  been  qualified  by  a  later  case  when  the  covenant  is  to  do 
something  conditionally,  as  to  repair  new  buildings  if  there  are  any. 
When  erected  these  buildings  will  be  a  part  of  the  thing  demised,  and 
subsequently  the  covenant  extends  to  its  support,  and  as  the  covenant 
clearly  binds  the  assignee  to  repair  things  in  esse  at  the  time  of  the 
lease,  so  does  it  also  those  in  posse,  and  consequently  the  assignee  is 
bound.  There  is  only  one  covenant  to  repair ;  if  the  assignee  is  included 
as  to  part  he  should  be  included  as  to  all.®^  But  a  covenant  to  erect 
buildings  on  the  demised  premises  or  indemnify  the  lessee,  which  did 
not  name  assigns,  was  held  not  to  be  binding  upon  an  assignee  of  the  re- 
version.'^*'  The  same  rule  was  applied  to  a  covenant  to  buy  fruit  trees 
planted  upon  the  premises  at  the  end  of  the  lease.^^ 

In  several  cases  in  the  United  States  covenants  relating  to  things 
not  in  esse  have  been  held  to  be  confined  to  the  original  parties  and  to 
be  incapable  of  being  enforced  by  or  against  third  persons,  unless  made 
expressly  for  and  with  assigns.    It  was  consequently  decided  that  a 

''Rochester  Lodge  No.  21  v.  Gra-  "'^  Minshull  v.  Oakes,  2  H.  &  N. 
ham,  65   Minn.   457,  68  N.   W.   789;      793,  808. 

First  Nat.  Bank  v.  Security  Bank,  *"  Doughty  v.  Bowman,  11  A.  &  E. 
61  Minn.  25,  63  N.  W.   264.  (N.  S.)  444,  63  E.  C.  L.  444. 

'*  Spencer's  Case,  6  Coke  10.  '^  Grey    v.    Cuthbertson,    2    Chit. 

482. 


§  330]  COVEXANTS  IN  LEASES.  348 

covenant  by  a  landlord  to  pay  for  such  buildings  as  might  subsequently 
be  erected  on  the  demised  premises  by  the  tenant,  in  which  assigns 
were  not  named,  could  not  be  enforced  by  an  assignee  of  the  term  and 
was  not  binding  on  a  grantee  of  the  reversion.^^  A  covenant  not  to  as- 
sign without  license,  in  which  assigns  are  not  mentioned,  does  not 
run  with  the  land,  for  it  obviously  contemplates  that  the  land  shall  not 
pass  into  the  possession  of  an  assignee.®^  A  covenant  to  supply  heat 
and  light  to  leased  premises  is  near  the  line,  as  it  has  been  drawn  be- 
tween covenants  that  will  and  those  that  will  not  pass  under  the  stat- 
ute^* in  respect  to  their  nature  when  assigns  are  not  mentioned.®^  But 
in  another  case  a  covenant  to  tear  down  an  old  chimney  and  fill  its 
place  with  a  new  one  was  held  to  run  with  the  land  to  assigns,  whether 
they  were  or  were  not  named.^^  And  the  entire  distinction  between 
cases  where  the  assignee  is  expressly  bound  and  those  where  he  is  not 
mentioned  has  been  said  to  be  unsound  and  bad  law.^^ 

§  330.  A  covenant  in  regard  to  a  personal  matter  undertaken  by 
one  party  to  a  lease  and  contained  in  the  instrument  of  demise  is  not 
binding  upon  the  assigns  of  the  covenantor.  Although  the  covenant 
be  for  him  and  his  assigns,  yet  if  the  thing  to  be  done  be  merely  col- 
lateral to  the  land  and  does  not  touch  or  concern  the  thing  demised  in 

°=  Hunt  v.  Danforth,  2  Curt.  C.  C.  none  of  the  cases  is  any  stress  laid 

592;    Tallman    v.    Coffin,    4    Comst.  upon  the  fact  that  the  assignee  of 

(N.    Y.)    134;    Thompson    v.    Rose,  the  lease  was  mentioned  in  the  cov- 

8    Cow.     (N.    Y.)     266;    Hansen    v.  enant.     The  cases  all  hold  that  the 

Meyer,    81    111.    321;    Verplanck    v.  covenant    runs    with    the    land    be- 

Wright,    23    Wend.     (N.    Y.)     506;  cause    it    relates    to    something    to 

Cronin  v.  Watkins,  1  Tenn.  Ch.  119.  be  done  upon  the  land  for  its  im- 

In     Illinois     this     rule     has     been  provement,    and    not    because    the 

changed  by  a  statute,  Rev.  St.  1874,  assignees  of  the  covenantor  are  men- 

p.   659,   §   15,  which  has  been   held  tioned  as  being  bound  by  the  cov- 

not  to   apply  to   covenants   entered  enant.      The    cases    also    hold    that 

into  before  its  passage.     Hansen  v.  when  the  covenant  does  not  in  fact 

Meyer,  81  111.  321.  run    with    the    land,    and    the    cov- 

°^  Dougherty  v.  Matthews,  35   Mo.  enant  has  no  relation   to   the  land 

520;  Hazlehurst  v.  Kendrick,  6  S.  &  leased,  neither  the  assignee  of  the 

R.   (Pa.)   446;   Doe  v.  Peck,  1  B.  &  lease  nor  of  the  reversion,  is  bound 

Ad.  428.  by  such  a  covenant,  though  the  as- 

"*  St.  32  Henry  VIII,  c.  34,  §  2.  signees  are  mentioned  in  the  lease. 

^' Cones  V.  Parker,  163  Mass.  564,  The  rule  in  Spencer's  case,  5  Coke 

40  N.  E.  564.  16,    .    .    .    does    not    seem    to    have 

"^  Harris     v.     Coulborn,     3     Harr.  been  followed  by  the  English  courts 

(Del.)    338.  nor  by  many  of  the  courts  in  this 

^'Ecke  V.   Fetzer,   65   Wis.   55,   26  country." 
N.    W.    266.      Taylor   J.   said:     "In 


349  CONSTRUCTION  AND  EFFECT.  [§  330 

any  way,  then  the  assignee  should  not  be  charged.  The  reason  why  the 
assignees,  though  named,  are  not  bound  is  because  the  thing  covenanted 
to  be  done  has  not  the  least  reference  to  the  thing  demised.®^  The 
covenant  on  a  sub-lease  of  part  of  a  lot  of  land  subject  to  a  charge  for 
ground  rent  that  the  sub-lessee  would  hold  free  from  liability  for  any 
part  of  the  ground  rent,  is  not  a  real  covenant  running  with  the  land 
to  bind  the  residue  of  the  land  with  the  entire  ground  rent  after  an 
assignment,  but  with  respect  to  such  residue  it  is  a  mere  personal  cove- 
nant."^ 

The  language  of  the  resolutions  in  Spencer's  case  might  convey  the 
impression  that  real  covenants  are  only  such  as  relate  to  some  physical 
thing  to  be  made  or  done  on  the  premises,  but  the  meaning  is  that  they 
are  such  as  affect  the  use  and  enjoyment  of  the  premises  by  the  tenant 
or  of  the  inheritance  by  the  reversioner.""  Many  cases  have  held  that 
the  covenant  for  quiet  enjoyment  and  similar  provisions  in  deeds,  which 
do  not  contemplate  any  change  in  the  physical  condition  of  the  prem- 
ises, go  with  the  land."^  Althovigh  the  covenant  for  a  renewal  of  the 
lease  be  made  in  terms  merely  in  favor  of  the  lessee,  it  is  well  settled 
that  such  a  covenant  runs  with  the  land  to  one  who,  by  assignment, 
comes  to  stand  in  the  place  of  the  covenantee.  Since  the  covenant  runs 
with  the  land,  it  is  obligatory  not  only  upon  the  covenantor  but  upon 
his  grantee.  "2  A  condition  that  no  renewal  need  be  made  in  case  the 
lessor  wished  to  use  the  land  for  building  purposes  would  also  run  in 
favor  of  assignees.  The  right  to  renewal,  in  the  absence  of  a  sale  of  the 
property  or  of  the  death  of  the  lessor,  was  still  dependent  on  the 
owner's  election  to  use  the  land ;  this  condition  was  inseparable  from 
the  covenant  of  which  it  was  an  integral  part."^  The  stipulation  in  a 
lease  that  if  the  leasehold  premises  should  be  sold  during  the  term 
the  lessees  would  vacate  and  deliver  up  possession  on  thirty  days'  notice 
in  writing,  shows  on  its  face  that  it  was  intended  to  pass  with  the  re- 
version, for  the  purpose  of  it  was  to  give  the  lessor  the  privilege  of 
conveying  the  property  with  its  enjoyment  undiminished  by  an  out- 
standing term,  so  that  the  purchaser  might  enter  into  the  possession 
immediately  to  make  use  of  the  premises  as  he  desired. i*'* 

"'Bally  v.  Wells,  3  Wils.  25.  Co.,   6   Phila.    (Pa.)    558;    Cunning- 

""Wahl   v.    Barroll,    8    Gill    (Md.)  ham  v.  Pattee,  99  Mass.   248;    Gan- 

288-  nett  v.  Albree,  103  Mass.  372;  Black- 

'""Hadley  v.  Berners,  97  Mo.  App.  more  v.  Boardman,  28  Mo.  420. 

314,    71    S.    W.    451.  i»3  Leppla  v.  Mackey,  31  Minn.  75. 

""Norman    v.     Wells,     17     Wend.  16  N.  W.  470. 

(N.  Y.)    136.  ^'^Hadley  v.  Berners,  97  Mo.  App. 

'"=  Leppla  v.  Mackey,  31  Minn.  75,  314,  71  S.  W.  451. 
16  N.  W.  470;  Barclay  v.  Steamship 


§■   331]  COVENANTS    IN    LEASES.  350 

§  331.  Covenants  affecting  the  mode  of  occupation:  and  enjoyment 
of  leased  premises  run  with  the  land,  and  the  assignee,  though  not 
named,  may  be  restrained  by  injunction  from  violating  the  same.^"^ 
Among  covenants  of  this  nature  may  be  mentioned  covenants  to  repair, 
whether  by  the  lessor  or  lessee,^'*^  to  leave  in  repair,^"'^  to  maintain  ex- 
isting fences,^"®  to  leave  land  with  certain  crops  planted,^ °^  not  to  plow 
or  cultivate  in  a  certain  manner,^^"  and  to  use  land  in  a  husbandlike 
manner  and  leave  it  in  like  condition.^^^  In  this  class  would  also  be  in- 
cluded covenants  to  reside  on  the  premises  during  the  term,^^^  not  to 
carry  on  particular  trades  on  the  premises  ;^^^  to  erect  only  buildings  of 
a  certain  kind  and  use  them  only  for  a  specified  purpose,^^*  and  not  to 
erect  buildings  in  front  of  the  demised  premises.^^^  The  same  doctrine 
has  been  applied  to  a  covenant  to  build  on  the  premises,^  ^"^  and  to  a 
covenant  to  build  and  maintain  an  adjoining  fence.^^''  A  covenant  by 
a  lessee  to  hold  the  lessor  railroad  harmless  from  fires  set  on  the  prem- 
ises is  near  the  line.  But  the  court  before  which  the  question  arose 
finally  held  that  such  a  covenant  ran  with  the  land  and  could  be  en- 
forced in  favor  of  an  assignee  of  the  reversion.^^®  So  a  covenant  by  a 
lessor  railway  to  stop  trains  at  a  leased  hotel  at  convenient  hours  for 
meals  ran  with  the  land  and  could  be  enforced  by  the  assignee  of  the 
lease.  The  agreement  to  stop  trains  for  meals  was  not  for  a  single  iso- 
lated act  or  series  of  acts  to  be  done  for  the  benefit  of  the  lessee  alone, 
but  the  acts  were  to  be  continuous,  and  ran  with  the  land  for  the  benefit 
of  an  assignee  of  the  lease.^^^   In  one  case  a  covenant  to  supply  the 

i''^  Wertheimer     v.      Hosmer,      83  Hartung  v.  Witte,  59  Wis.  285,  18 

Mich.    56,    47    N.    W.    47;    Dunn    v.  N.  W.  175. 

Barton,    16    Fla.    765;    Wheeler    v.  ^°»  Hooper  v.  Clark,  8  B.  &  S.  150. 

Earle,   5   Cush.    (Mass.)    31;    Miller  "» Cockson  v.  Cock,  Cro.  Jac.  125. 

V.  Prescott,  163  Mass.  12,  39  N.  E.  i"  Walsh   v.   Watson,   Esp.    N.   P. 

409;    Gannett  v.  Albree,   103   Mass.  295. 

372;  Crowe  v.  Riley,  63  Ohio  St.  1;  "^Tatem  v.  Chaplin,  2  H.  Bl.  133. 

De  Forest  v.  Byrne,  1  Hilt.   (N.  Y.)  "'Barron  v.  Richard,  3  Edw.  Ch. 

43.  (N.  Y.)   96. 

^"^  Shelby     v.     Hearne,     6     Yerg.  "*  St.  Andrews  Lutheran  Church's 

(Tenn.)     512;    Allen    v.    Culver,    3  Appeal,  67  Pa.  St.  512. 

Denio     (N.    Y.)     284;     Norman    v.  "°  Trustees  &c.  v.  Cowen,  4  Paige 

Wells,  17  Wend.  (N.  Y.)  136;  Myers  (N.  Y.)    510. 

V.    Burns,    33    Barb.    (N.    Y.)    401;  "« Fisher  v.  Lewis,  3  Pa.  L.  J.  73. 

Mitchell  V.  McNeil,  4  Colo.  App.  36,  "^  Bronson    v.    Coffin,    108    Mass. 

34  Pac.  84;  Carley  v.  Lewis,  24  Ind.  175. 

23.  ""Northern    Pac.    R.    Co.    v.    Mc- 

"^Demarest    v.    Willard,    8    Cow.  Clure,  9  N.  Dak.  73,  81  N.  W.  52. 

(N.   Y.)    206;    Myers   v.    Burns,   33  "' Cleveland  &c.  R.  Co.  v.  Mitchell, 

Barb.  (N.  Y.)  401.  74  111.  App.  602. 

"'Kellogg  V.  Robinson,  6  Vt.  276; 


351  CONSTRUCTIOX  AND  EFFECT.  [§  333 

tenement  demised  with  a  sufficient  quantity  of  good  water  was  held  to 
be  a  covenant  which  respected  the  premises  demised,  and  the  manner  of 
enjoyment,  and  therefore  to  run  with  the  land.  "The  lease  does  not 
specifically  point  out  the  particular  mode  by  which  the  water  is  to  be 
supplied/^  said  Abbott;  C.  J.,  "whether  by  pipes,  by  collecting  the  water 
in  cisterns,  or  by  carrying  it  to  the  premises  by  buckets,  but  it  is  quite 
clear  that  the  covenant  cannot  be  satisfied  unless  a  sufficient  quantity 
of  good  water  is  brought  upon  the  premises  during  the  term.  This  is, 
therefore,  a  covenant  which  respects  the  premises  demised  and  the 
manner  of  enjoyment,  and  I  have  no  doubt^  therefore,  that  it  is  a  cove- 
nant which  runs  with  the  land."^^**  An  agreement  reserving  to  lessee 
the  right  to  cultivate  cleared  land  for  a  certain  number  of  years  runs 
with  the  land  and  is  binding  upon  an  assignee  of  the  leversion.^^^  Pre- 
caution often  becomes  necessary,  not  only  for  the  protection  of  the 
premises  from  injuries  which  might  otherwise  be  done  to  them,  but 
to  prevent  their  respectability  being  lessened,  and  their  good-will 
thereby  diminished.  Covenants  of  this  kind,  as  they  effect  the  mode  of 
occupation  and  enjoyment,  run  with  the  land.^^^ 

§  332.  A  covenant  to  buy  improvements  at  the  end  of  the  term 
runs  with  the  reversion.  If  the  lessor  covenanted  for  himself  and  his 
assigns  it  would  bind  an  assignee  without  regard  to  the  time  when  the 
improvements  were  erected  or  to  stipulations  requiring  their  erec- 
tion.123  jj^  Qjjg  gggg  ^Y\e  assignee  was  held  to  be  bound  although  the  les- 
sor did  not  covenant  for  assigns.  In  that  instance  the  performance  of 
the  covenant  to  build  by  the  lessee  was  beneficial  to  the  reversioner  and 
to  no  other  person.  The  house  was  built  at  the  time  of  the  assignment 
of  the  lease,  and  the  right  and  title  to  it  passed  to  the  assignee  at  the 
end  of  the  term.  The  covenants  respecting  the  house  had  direct  and 
especial  reference  to  the  land.  From  these  considerations  the  lease  was 
to  be  construed  in  all  respects  the  same  as  if  the  words  "or  assigns" 
were  expressly  written  therein.^^*   Conversely  a  covenant  by  a  lessee  to 

""  Jourdain  v.  Wilson,  4  B.  &  Aid.  Frederick  v.  Callahan,  40  Iowa  311; 

266,  6  E.  C.  L.  420.  Coffin  v.  Talman,  8  N.  Y.  465;   Bel- 

'^  Callan  v.  McDaniel,  72  Ala.  96,  den    v.    Union    Warehouse    Co.,    11 

s.  c.  75  Ala.  327.  N.  Y.  App.  Div.  160,  §  377. 

^=^ Wertheimer    v.    Circuit    Judge,        '"Frederick  v.  Callahan,  40  Iowa 

83  Mich.  56,  47  N.  W.  47.  311.     But  see  Bream  v.  Dickerson, 

"^Bailey   v.    Richardson,    66    Cal.  2   Humph.    (Tenn.)    126,  where  the 

416,  5  Pac.  910;   Lametti  v.  Ander-  opposite    conclusion    was    reached, 

son,   6   Cow.    (N.   Y.)    302;    Hunt  v.  The    court    said:      "A    covenant    to 

Danforth,  2   Curt.  C.  C.   592;    Man-  run  with  the  land  must  touch  and 

sel  v.  Norton,  L.  R.,  22  Ch.  Div.  769;  concern  it,  and  it  is  difficult  to  con- 


§  332]  COVENANTS  IN  LEASES.  352 

surrender  the  improvements  on  the  premises  at  the  end  of  the  term  is 
one  which  runs  with  the  land.^^°  But  a  covenant  to  purchase  chattels 
from  a  lessee  is  not ;  and  therefore  if  a  covenant  by  a  lessor  to  pay  for 
shortage  of  grain  in  a  leased  grain  elev-ator  is  construed  as  a  covenant  to 
pay  for  chattels,  it  is  only  personal.  But  such  would  not  be  the  true 
construction  of  a  lease  which  was  peculiar  in  terms,  the  rent  not 
being  a  fixed  sum  but  a  certain  proportion  of  the  earnings  of  the  busi- 
ness. It  was  practically  an  agreement  that  the  rent  should  be  increased 
or  diminished  by  the  surplus  or  shortage,  as  the  case  might  be,  which 
should  occur  in  the  operations  of  the  warehouse.  If  not  technically 
rent,  it  so  concerned  the  thing  demised  as  to  run  with  the  land.  If  this 
view  be  correct,  then  the  purchaser  of  the  reversion  would  be  responsi- 
ble to  the  tenant  for  the  amount  of  the  shortage.^"^  However,  where 
the  covenant  to  purchase  at  the  end  of  the  term  extends  to  personal 
chattels  which  are  in  no  sense  fixtures  upon  the  demised  premises,  it  is 
a  mere  personal  undertaking  and  will  not  run  with  the  land.  The 
words  "articles,  matters  and  things"  indicate  movable  chattels  which 
might  be  replaced.  It  is  impossible  to  say  that  the  chattels  thus  spoken 
of  are  confined  to  fixtures.  If  they  had  been  the  covenant  would  have 
run  with  the  land  in  case  the  lease  required  the  tenant  to  erect  im- 
provements.^-^ 

If  lessors  before  assignment  are  in  default  in  respect  to  a  covenant 
to  buy  improvements  they  could  be  sued  by  the  lessee  for  the  breach  of 
covenant  in  spite  of  the  subsequent  assignment,  and  in  that  action  the 
lessee  could  recover  the  whole  value  of  the  improvements.  ^^^  A  cove- 
nant which  provides  for  payment  at  the  end  of  the  term  for  buildings 
erected  on  the  demised  premises  is  not  a  continuing  covenant,  and  the 
non-payment  of  the  amount  and  failure  to  name  an  appraiser  in  order 
to  ascertain  the  amount  is  not  a  "continual  breach,"  for  which  the 
grantee  of  the  reversion  would  be  liable  though  it  did  not  happen  in  his 
time.^^^  Although  a  covenant  to  repair  is  a  continuing  covenant,  and 
so  imposes  an  obligation  to  repair  so  often  as  occasion  arises  during  the 
time,  and  notwithstanding  prior  breaches  and  recoveries  therefor,^ ^^ 

ceive  how  a  covenant  to  pay  a  pe-  ^^  Church    Wardens    v.    Smith,    3 

cuniary  consideration   for  a   house,  Bur.    1271;    Beddoe   v.    Wadsworth, 

if  the  tenant  shall  think  proper  to  21  Wend.   (N.  Y.)  120;  Fish  v.  Fol- 

erect  it,  can  be  said  to  touch  and  ley,  6  Hill   (N.  Y.)    54;   Stuyvesant 

concern  the  estate."  v.  Mayor  &c.,  11  Paige  (N.  Y.)  414; 

^^Coburn  v.  Goodall,  72  Cal.  498,  Coffin  v.  Talman,  8  N.  Y.  465. 

14  Pac.  190,  1  Am.   St.   75.  '="  Coffin  v.  Talman,  8  N.  Y.  465. 

""Belden     v.     Union     Warehouse  ^''^  Kingdon   v.   Nottle,   1   M.   &   S. 

Co.,  11  N.  Y.  App.  Div.  160.  355,    365;    Astor   v.    Hoyt,   5   Wend. 

^Gorton  v.  Gregory,  3  B.  &  S.  90.  (N.  Y.)   603. 


353  CONSTRUCTION  AND  EFFECT.        [§§  333,  334 

there  is  no  decided  case  in  which  the  assignee  of  a  lessee  has  been  held 
liable  upon  any  breach  of  a  covenant  to  repair  for  which  the  lessee 
might  have  been  sued.^^^ 

§  333.  A  covenant  of  guaranty  for  rent  is  collateral  to  the  lease 
it  accompanies^^ ^  and  is  not  affected  by  the  early  statute  in  modifica- 
tions of  the  common  law.^^^  A  similar  covenant  was  held  by  the  Su- 
preme Court  of  New  York  to  pass  to  assigns/^*  but  this  decision  was 
rested  on  the  authority  of  an  old  English  case/^^  where  the  distinction 
Avas  between  covenants  which  take  effect  as  easements  and  pass  even 
to  disseisors  and  those  pure  contracts  on  which  no  one  can  sue  except 
parties  and  privies.  "Although  rent  savors  of  the  realty,  any  warranty 
or  insurance  of  rent  is  a  purely  personal  contract  of  which  another 
than  the  original  contractee  can  avail  himself  only  on  the  principles  of 
contract."  After  the  death  of  the  lessor  his  administrator  can  recover 
rent  under  the  guaranty  as  trustee  for  the  heirs. ^^"^ 

A  covenant  in  an  instrument  purporting  to  be  a  lease,  to  pay  a 
widow  a  sum  of  money  annually  in  lieu  of  rent,  in  consideration  of 
her  forbearing  to  exercise  her  right  to  dower,  is  a  personal  covenant 
and  cannot  run  with  the  land  so  as  to  bind  an  assignee  of  the  so-called 
lease.  The  right  of  the  widow  to  have  dower  assigned  to  her  is  not  such 
an  estate  as  can  be  subject  to  a  lease.^^^ 

§  334.  Running  of  covenants  after  breach. — Where  a  covenant 
touching  the  demised  premises  requires  the  performance  of  a  single 
act,  or  a  series  of  contemporaneous  acts,  and  not  the  performance  of 
acts  at  different  times,  such  covenant  will  not  run  with  the  land  after 
breach.  The  distinction  is  between  such  covenants  as  are  entire  and 
such  as  are  of  a  continuing  nature.  The  general  rule  that  subsequent  to 
a  breach  a, covenant  will  not  run  seems  completely  established.^^^    A 

"1  Coffin  V.  Talman,  8  N.  Y.  465.  "^  Croade   v.    Ingraham,    13    Pick. 

"=  Walsh    V.    Packard,    165    Mass.  (Mass.)   33. 

189,   42   N.  E.  577;    Virden  v.  Ells-  "^  Gerzebek  v.   Lord,   33   N.   J.   L. 

worth,  15   Ind.  144.  240;    Force    v.    Callahan,    8    N.    J. 

^'^Harbeck  v.  Sylvester,  13  Wend.  L.   G.   139;    Mirick   v.   Bashford,   38 

(N.  Y.)   608.  Barb.    (N.  Y.)    191;    Day  v.   SWack- 

"^  Allen    V.    Culver,    3    Denio    (N.  hamer,    2   Hilt.    (N.   Y.)    2;    Hintze 

Y.)    284.  V.    Thomas,   7   Md.    346;    Grescot   v. 

1'=  Pakenham's  Case,  Y.  B.  42  Ed.  Green,  1  Salk.  199;  Church  War- 
Ill,  3,  pi.  14.  dens  v.  Smith,  3  Burr.  1271;   Crane 

"''Walsh    V.    Packard,    165    Mass.  v.  Batten,  28  E.  L.  &  Eq.  137;  John- 

189,  42  N.  E.  577,  per  Holmes  J.  son  v.  Church  Wardens,  4  A.  &  E. 

Jones  L.  &  T.— 23 


§  335]  COVENANTS  IX  LEASES.  354 

leading  case  is  that  of  Grescot  v.  Oreen,^^^  in  which  a  lessee  covenanted 
for  himself  and  his  assigns  to  rebuild  and  finish  a  house  within  such  a 
time,  and  after  that  time  he  assigned,  the  house  not  being  built  and 
finished ;  and  Holt,  chief  justice,  said :  "This  covenant  shall  not  bind 
the  assignee,  because  it  was  broken  before  the  assignment,  aliter  if 
broken  after,  as  if  the  lessee  had  assigned  before  the  time  expired."  A 
covenant  by  the  landlord  to  do  repairs  which  are  specified  must  be  done 
within  a  reasonable  time,  and  will  not  run  with  the  land  after  breach. 
But  where  general  repairs  are  agreed  to  be  done  during  the  tenancy,  no 
certain  time  being  indicated,  a  notice  to  perform  is  necessary  to  put 
the  landlord  in  default.""  A  covenant  to  grade  and  inclose  and  im- 
prove premises  is  not  a  continuing  covenant,  but  one  which  is  to  be  per- 
formed within  a  reasonable  time.  So  a  recovery  in  an  action  for  a 
breach  of  such  a  covenant,  brought  after  the  expiration  of  a  reasonable 
time  to  perform  the  same,  would  be  a  bar  to  any  further  recovery  of 
damages  for  the  breach  thereof,  and  would  also  be  a  bar  to  a  suit  in 
equity  for  the  specific  performance  of  such  covenant."^  A  release  by 
a  lessor  of  his  lessee  from  "further"  liability  under  his  lease  is  not  a 
release  from  liability  for  taxes  already  accrued  and  which  by  the  terms 
of  the  lease  the  lessee  had  assumed  to  pay.  The  word  "further,"  as 
there  used,  means  future. ^^^ 

§  335.  A  covenant  to  insure  which  had  for  its  object  the  benefit  of 
the  lessor  only,  as  where  the  money  paid  in  the  event  of  the  loss  would 
go  to  him,  has  been  regarded  as  collateral;  but  if  the  money  is  to  be 
applied  to  repair  or  rebuilding,  then  it  is  in  character  like  a  covenant 
to  repair  which  may  run  with  the  land.^*^  What  is  this  but  in  eifect 
a  modified  covenant  to  repair  and  rebuild  ?  The  insurance  is  to  be  kept 
up,  so  that  in  case  of  loss  by  fire  the  sum  insured  shall  be  immediately 
applied  to  rebuilding  the  property  on  the  premises.  Being  of  this  char- 
acter, it  would  run  with  the  land,  just  as  would  an  ordinary  and  abso- 
lute covenant  to  repair  or  rebuild.^'** 

520;  Hawkins  v.  Sherman,  3  C.  &  P.  "=0'Fallon   v.    Nicholson,    56    Mo. 

459.  238. 

"'  1  Salk.  199.  .   "^  Masury  v.   Southworth,  9  Ohio 

""Gerzebek  v.   Lord,   33    N.   J.   L.  St.  340;    Spencer's  Case,  5  Coke  16. 

240.  '"  Thomas  v.  Vonkapff,  6  Gill  &  J. 

"^Stuyvesant    v.    Mayer    &c.,    11  (Md.)  372. 

Paige   (N.  Y.)   414. 


355  FOR  EEXEWAL  OF  LEASE.  [§  336 


II.     For  Reneival  of  Lease. 

§  336.  A  common  form  of  lease  fixes  a  short  term  for  which  the 
lessee  is  bound  to  retain  the  premises  and  then  gives  him  a  right  to 
occupy  them  for  a  further  period  if  he  so  desires.  This  can  be  ac- 
complished by  providing  that  the  duration  of  the  term  under  the  origi- 
nal lease  shall  be  a  variable  or  by  a  covenant  on  the  part  of  the  lessor 
to  execute  a  new  and  distinct  lease.  The  mode  adopted  depends  upon 
the  intention  of  the  parties,  as  shown  by  the  language  used  and  the 
attendant  circumstances.  The  expression  "renewal"  suggests  a  distinct 
demise,  while  the  phrases  "continue"  or  "he  extended"  have  the  oppo- 
site effect.  The  option  of  extending  a  term  two  or  three  years  is  a  privi- 
lege to  be  exercised  by  the  tenant  during  the  term,  and  not  fixed  by 
him  as  part  of  the  lease.  Such  privileges  are  not  uncommon,  and 
though  dependent  on  the  will  of  one  of  the  parties,  they  do  not  impair 
the  mutuality  of  the  contract.  Mutuality  of  a  contract  means  an  obli- 
gation on  each  party  to  do  or  permit  to  be  done  something  in  considera- 
tion of  the  act  or  promise  of  the  other.  It  does  not  imply  that  every 
stipulation  is  absolute  and  unqualified.^*^ 

In  case  a  lease  provides  that  the  lessee  may  hold  the  premises  for 
an  additional  term  of  one,  two  or  three  years  at  his  election,  there  can 
be  but  one  election,  which  may  be  for  a  further  term  of  one,  two  or 
three  years,  but  if  the  election  is  for  one  of  the  shorter  periods,  the 
privilege  cannot  again  be  exercised  so  as  to  embrace  another  year. 
There  is  nothing  in  the  language  of  such  a  lease  which  expressly  gives 
the  lessee  the  privilege  of  electing  more  than  once.  Such  a  result 
must  be  reached  by  construction  if  at  all.  The  language  of  the  lease 
excludes  the  idea  of  two  or  three  additional  terms.  Only  one  ad- 
ditional term  is  provided  for,  and  the  construction  that  the  privilege 
is  of  three  terms  and  three  elections  by  the  lessee  cannot  be  adopted 
without  violence  to  the  language  used,  while  one  term  and  consequently 
one  election  is  in  perfect  harmony  with  such  language.^*® 

A  lease  for  one  year  with  an  agreement  that  if  the  tenant  should 
continue  on  the  premises  after  the  first  year,  then  the  lease  should  be 
in  force  another  year,  and  so  on  from  year  to  year,  does  not  create  an 
ordinary  tenancy  from  year  to  year.  The  lessee  would  be  tenant  of  the 
premises  for  one  year,  with  the  option  of  continuing  from  year  to  year 
for  another  five  years,  and  having  enjoyed  all  that  his  option  gave  him, 
after  six  years  the  lessor  is  then  entitled  to  the  possession  of  the 

"^  Spear  v.  Orendorf ,  26  Md.  37.  "«  Falley  v.  Giles,  29  Ind.  114. 


§  337]  COVENAXTS  IN  LEASES.  356 

premises.  The  contention  that  a  tenancy  for  one  year,  and  so  on  from 
year  to  year,  is  a  tenancy  for  two  years  at  least  and  cannot  be  deter- 
mined at  the  end  of  the  first  year,  is  not  valid.  That  a  lease  for  a  year 
and  so  on  from  year  to  year  is  a  lease  binding' but  for  one  year  may 
now  be  considered  as  the  general  rule.^*" 

While  an  indorsement  on  the  back  of  a  lease  of  an  agreement  for  a 
further  holding  would  ordinarily  operate  as  an  extension  of  the  origi- 
nal lease  over  a  further  term,  it  might  take  effect  as  a  new  demise ;  and 
such  was  the  case  where  the  writing  contained  no  exceptions  or  reser- 
vations and  did  not  import  to  be  an  extension  of  the  previous  lease. 
New  and  valuable  considerations  entered  into  it.  More  property  was 
included,  and  the  lessor  was  getting  valuable  and  permanent  improve- 
ments made  without  cost  to  himself.  The  indorsement  must,  there- 
fore, be  construed  as  a  new  leasing,  and  not  as  an  extension  of  the  old 
lease.    It  superseded  and  cancelled  the  old  lease.^** 

§  337.  A  distinction  between  a  stipulation  to  renew  a  lease  and 
one  to  extend  it  for  an  additional  period  beyond  the  original  term,  is 
usually  made.  The  former  requires  the  execution  of  a  new  lease ;  the 
latter  does  not.  Where  a  lease  provides  for  an  extension  on  a  notice 
and  a  verbal  notice  is  intended,  such  notice  will,  ipso  facto,  extend  the 
lease  for  an  additional  term  longer  than  one  year,  and  is  not  within  the 
statute  of  frauds.^*^  In  an  early  case  in  Wisconsin  a  covenant  for  a 
further  term  provided  that  "in  case  the  lessees  signify  their  intention, 
at  the  expiration  of  this  lease,  to  have  the  same  extended,  the  lessors 
hereby  covenant  to  extend  the  lease,  provided  an  increased  rent  is 
paid.''  Dixon,  J.,  pronounced  one  opinion  of  an  equally  divided  court, 
to  the  effect  that  no  new  lease  need  l^e  executed  for  the  further  term. 
He  said:  "The  rule  ...  is,  not  that  the  lease  must  clearly  nega- 
tive or  deny  the  intention  of  the  parties  to  make  a  new  one,  but  that 
it  must  clearly  and  positively  show  on  its  face  that  such  ivas  their  in- 
tention. If  it  be  not  so  clearly  and  positively  shown,  the  presumption 
is  that  no  new  lease  was  intended  and  that  the  tenant  was  to  continue 
to  hold  under  the  original  one."^^*'   "The  verb  to  extend,"  continues 

"'Jones  V.  Kroll,  116  Pa.  St.  85;  i="  Orton  v.  Noonan,  27  Wis.  272, 

MacGregor  v.  Rawle,  57  Pa.  St.  184;  281.    In  this  case  the  decision  of  the 

Boyd   V.   Pico,  1   Hawaii   398;    Dod  court   below   had   been  that  a  new 

V.  Monger,  6  Mod.  215.  lease   must  be   executed,    and   this, 

^*^  Walsh  V.  Martin,   69   Mich.   29,  the    judges    being    equally    divided, 

37  N.  W.  40.  remained  the  decision  of  the  court, 

"°  Tilleny  v.  Knoblauch,  73  Minn,  and  is  the  law  of  Wisconsin  today. 

108,  75  N.  W.  1039,  citing  Orton  v.  Kollock  v.  Scribner,  98  Wis.  104,  73 

Noonan,  27  Wis.  272.  N.  W.  776. 


357  POR  RENEWAL  OF  LEASE.  [§  337 

the  learned  justice,  "implies  far  less  in  this  connection  than  the  verb 
to  renew,  found  in  other  cases.  In  fact,  it  has  nothing  of  the  same 
strength  and  significance.  To  extend  is  to  draw  forth  or  stretch;  to 
prolong ;  to  protract ;  to  continue.  To  renew  signifies  to  make  over,  to 
make  anew;  to  give  new  life  to;  to  restore;  to  recreate;  to  rebuild." 
The  words  used  "are  in  no  sense  stronger  or  more  conclusive  for  the 
purpose  of  showing  that  a  new  lease  was  intended  than  would  have 
been  the  words  with  the  privilege  to  have,  with  the  privilege  of  keep- 
ing, with  the  privilege  if  desired,  or  at  the  option  of  the  lessee  for  the 
further  term  of,  which  operate  as  a  continuous  lease."  On  one  hand, 
it  seems  clear  that  the  lease  will  operate  as  a  continuous  demise  for 
the  original  term  and  the  extension  when  the  expression  used  has  been 
in  the  words,  "with  the  privilege  to  have,"  "with  the  privilege  of  keep- 
ing," "with  the  privilege  if  desired,"  or  "at  the  option  of  the  lessee 
for  the  further  term  of."^^^  On  the  other  hand,  the  expression  that  the 
lessor  covenants  to  renew  the  lease  indicates  the  intention  of  the  par- 
ties to  execute  a  new  instrument.^^^  In  accordance  with  the  principle 
of  the  foregoing  decision,  it  has  been  decided  that  a  covenant  to  renew 
does  not  give  the  tenant  a  right  to  retain  possession  after  the  end  of 
the  original  term.  His  remedy  is  an  action  for  damages  or  for  specific 
performance.^^^  A  clause  in  a  lease  giving  the  lessee  the  option,  on  a 
certain  condition,  to  renew  the  lease  for  a  year  is  not  a  demise  to  take 
effect  at  the  end  of  the  first  lease ;  it  is  a  mere  covenant  or  undertak- 
ing of  the  lessor  to  let  the  lessee  have  a  second  term,  which  may  be 
enforced  on  bill  for  specific  performance,  or  upon  which  an  action  at 
law  may  lie  for  a  breach.^^*  Such  a  provision  is  one  for  a  renewal  of 
the  lease,  and  not  one  for  an  extension  of  the  term,  in  spite  of  a  sub- 
sequent clause  that  "at  the  expiration  of  the  lease,  if  not  extended  as 
heretofore  mentioned,  the  lessee  agrees  to  quit  and  deliver  up  pos- 
session."^^^ 

"^Chretien  v.  Doney,  1  N.  Y.  419;  bond  signed  by  one  party  only,  exe- 

Munson  v.  Wray,  7  Blackf.    (Ind.)  cuted  at  the  same  time  as  a  lease 

403;    House  v.  Burr,   24   Barb.    (N.  for  the  year,  which  entitled  lessee 

Y.)    525;    Kramer  v.   Cook,   7   Gray  to    renew    for   five   years    does    not 

(Mass.)   550;   Hall  v.  Spaulding,  42  constitute  a  present  demise  of  the 

N.  H.  259.     But  see  James  v.  Kib-  property  which  can  be  enforced  at 

ler,  94  Va.  165,  26  S.  E.  417,  contain-  law.  Hunter  v.  Silvers,  15  111.  174. 
ing  a  dictum  to  the  contrary.  "*  Sutherland  v.  Goodnow,  108  111. 

"=Orton  v.  Noonan,  27  Wis.  272;  528;  North  Chicago  St.  R.  Co.  v.  Le 

Kollock    v.    Scribner,    98    Wis.    104,  Grand  Co.,  95  111.  App.  435;   Hunter 

73  N.  W.  776.  V.  Silvers,  15  111.  174. 

^"Finney    v.    Cist,    34    Mo.    303;         "=>  Shamp  v.  White,  106  Cal.  220, 

Arnot  v.  Alexander,  44  Mo.  25.     A  39  Pac.  537. 


I  338]  COVEXAXTS  IX  LEASES.  358 

So,  where  a  lease  provided  that  it  should  be  optional  with  the  les- 
see to  take  the  premises  for  a  further  term  of  two  years,  and  the 
privilege  was  accepted,  it  was  held  to  be  one  lease  for  the  entire  time ; 
the  additional  two  years  is  not  a  new  demise,  but  a  continuation  of  the 
old  one.^^"  In  another  case  a  renewal  clause  provided  that  the  lessee 
should  be  entitled  to  a  four  years'  additional  "lease ;"  but  it  was  held 
that  the  word  "lease"  must  be  taken  to  be  equivalent  to  "term,"  as 
this  clearly  carried  out  the  intention  of  the  parties.  It  was  all  one 
"lease"  for  the  original  and  extended  term.^^^ 

A  lease  giving  the  lessee  the  option  of  re-leasing  the  premises  "for  a 
term  of  ten  years,  or  any  part  thereof,"  could  be  made  valid  for  a 
period  beyond  the  original  term  without  the  execution  of  any  new  in- 
strument by  the  lessor.  The  tenant  seasonably  and  formally  gave  writ- 
ten notice  to  the  landlord  of  his  election  to  continue  the  tenancy  under 
the  lease  for  a  further  period  of  three  months.  This  was  a  re-leasing 
for  that  period,  and  at  the  end  of  that  time  the  term  expired  without 
further  notice  or  other  act.  Such  notice,  accompanied  by  a  continua- 
tion of  possession,  was  sufficient  to  extend  the  term.  According  to  the 
weight  of  authority,  the  clause  in  the  lease  for  re-leasing  should  be 
construed  as  a  present  demise  to  take  effect  in  the  future  at  the  option 
of  the  lessee.^^^ 

§  338.  On  the  question  whether  a  general  provision  to  renew  a 
lease  calls  for  a  new  one,  or  whether  at  the  option  of  the  lessee  it  is 
extended  by  the  force  of  the  covenant  itself  and  becomes,  in  effect,  a 
lease  for  the  additional  term,  the  latter  construction  was  favored  by 
the  New  Hampshire  Supreme  Court,  and  its  decision"''  has  been  cited 
with  approval  by  many  courts  and  text  writers.  In  holding  that  con- 
tinuance in  possession  constituted  an  election  to  hold  under  a  renewal 
agreement,  the  Missouri  court  said:  "It  is  true  that  the  word  're- 
newal' is  used,  and  not  the  words  specifying  that  the  term  shall  'con- 
tinue' or  'be  extended,'  etc.,  but  the  context  and  the  intention  of  the 

"'Fleischner  v.  Citizens'  Inv.  Co.,  renewal    for    the    further    term    of 

25  Ore.  119,  35  Pac.  174;   Clarke  v.  two  years  from  the  expiration  here- 

Merrill,  51  N.  H.  415.  of  at  an  annual  rental  of  eighteen 

"'Harding  v.   Seeley,  148   Pa.   St  hundred  dollars."     The  court  said: 

20,  23  Atl.  1118.  "We  see  no  reason  why  under  the 

"^Willoughby    v.    Atkinson    Fur-  words    quoted    from   the    lease    the 

nishing  Co.,  93  Me.  185,  44  Atl.  612.  tenant  is  not  to  be  regarded  as  in 

"'Ranlet  v.  Cook,  44  N.   H.  512;  of  the  additional  term."     Ferguson 

Hall   v.    Spaulding,    42    N.    H.    259.  v.  Jackson,  180  Mass.  557,  62  N.  E. 

The  clause  in  one  case  was:    "The  965. 
lessee  shall   have  the  privilege  of 


359  FOR  RENEWAL  OF  LEASE.  [§    339 

parties  must  be  regarded.  The  privilege  of  a  renewal  is  given  to  the 
lessee,  and  in  case  he  accepts,  the  lease  contains  everything  showing 
the  contract  of  the  parties."^*'"  On  the  contrary,  there  is  authority 
that  the  words  "renew"  and  "extend"  should  be  construed  in  accord- 
ance with  their  ordinary  meaning.  Obviously,  one  means  to  prolong 
or  to  lengthen  out,  the  other,  to  make  over,  to  re-establish,  to  rebuild ; 
and  those  courts  and  writers  that  have  construed  them  accordingly 
certainly  have  the  best  of  the  argument,  if  the  judicial  construction  is 
to  follow  the  true  definitions  of  the  words.  "We  apprehend,"  said 
Marshall,  J.,  "that  no  one  would  seriously  contend  that  an  agreement 
to  renew  a  note  would  be  satisfied  otherwise  than  by  making  a  new 
note  in  place  of  the  old  one.  It  would  seem  that  the  construction  ad- 
hered to  in  some  jurisdictions,  that  to  renew  is  equivalent  to  extend, 
violates  the  rules  of  language  to  reach  a  judicial  construction  out  of 
harmony  with  the  universally  accepted  meaning  of  the  words  as  de- 
fined by  lexicographers."^''^  ISTo  inference  can  be  made  of  an  intention 
to  have  a  new  lease  executed  rather  than  to  have  the  original  one  con- 
tinue during  the  extension  from  the  fact  that  notice  of  election  may 
be  given  by  word  of  mouth.^®^ 

§  339.  Where  a  lessee  is  entitled  to  the  renewal  of  his  lease,  he 
must  give  notice  promptly  at  or  before  the  expiration  of  the  first 
term  or  according  to  the  agreement.^^^  "Being  a  lease  with  a  privi- 
lege of  renewal,"  said  Judge  Henshaw  in  such  a  case,  "it  was  incum- 
bent upon  the  lessee,  desiring  to  exercise  his  option,  to  give  notice  of 
his  election  before  the  expiration  of  the  original  term;  while  if  the 
lease  had  provided  merely  for  an  extension,  his  remaining  in  posses- 
sion (no  specific  form  of  notice  having  been  required)  would  have 
been  sufficient  notification  of  his  decision."^®*  "The  contract  was  not 
that  upon  the  expiration  of  his  term  he  might,  if  he  so  desired,  con- 
tinue in  the  occupancy  of  the  premises  for  a  further  fixed  period,  so 
that  upon  his  election  the  further  period  would  be  only  a  continuation 
of  the  original  term.  .  .  .  The  contract  was  for  a  renewal  of  the 
lease  for  a  period  not  fixed.    ...    It  was  incumbent  on  him  to  notify 

""Insurance   &c.   Co.   v.    National  690;   City  of  London  v.  Mitford,  14 

Bank  &c.,  5  Mo.  App.  333,  affirmed  Ves.  41;  Rubery  v.  Jervoise,  1  Term 

71  Mo.  58.  R.  229;   Darling  v.  Hoban,  53  Mich. 

''^Kollock    V.    Scribner,    98    Wis.  599,  19  N.  W.  545. 
104,  73  N.  W.  776.  i«  Shamp  v.  White,  106   Cal.   220, 

"'Orton  V.  Noonan,  27  Wis.  272.  222,  39  Pac.  537;  Renoud  v.  Daskam, 

"'Thiebaud   v.   First   Nat.    Bank,  34  Conn.  512;   Delashman  v.  Berry, 

42  Ind.  212;   Eaton  v.  Lyon,  3  Ves.  20  Mich.  292. 


§■   340]  COTEXAXTS  IN"  LEASES.  3G0 

liis  landlord.  .  .  .  Upon  this  being  donej,  a  new  agreement  was  to 
cover  the  new  term."^®^ 

The  lessee's  election  to  take  the  renewal,  made  the  second  day  after 
the  original  term  expired,  was  held  to  come  too  late.  A  contrary  con- 
struction would  give  the  lessee  too  great  latitude  in  regard  to  the  time 
for  his  election  and  make  the  lessor  run  the  hazard  of  losing  the  rent 
for  a  year.^®^  After  the  original  term  has  been  allowed  to  expire  with- 
out the  lessee  exercising  his  option  to  secure  a  renewal  of  the  lease, 
'  his  holding  over  after  the  expiration  of  the  period  first  designated 
would  have  the  same  effect  as  if  there  had  been  no  renewal  agreement 
at  all,  and  he  would  become  a  tenant  from  year  to  year.^®'^  This  would 
be  changed  by  a  provision  for  a  penalty  of  double  rent  in  case  of  hold- 
ing over.  There  a  mere  holding  over  for  several  years  was  presumed 
to  be  under  the  renewal  agreement,  and  the  rights  of  the  parties  were 
the  same  as  if  a  new  lease  had  been  executed.^^*  But  a  different  rule  is 
applied  in  case  of  perpetual  leases.  Where  the  original  term  of  a  lease 
for  ninety-nine  years,  renewable  forever,  has  expired,  and  the  owner 
of  the  leasehold  interest  has  failed  to  obtain  a  renewal  within  the  term, 
according  to  the  literal  wording  of  the  covenant  for  renewal,  equity 
will  relieve  him,  and  compel  the  owner  of  the  reversion  to  execute  a 
new  lease,  provided  the  application  be  made  in  a  reasonable  time  and 
all  arrearages  of  ground  rent  be  first  paid.  But  gross  laches  on  the 
part  of  the  owner  of  the  leasehold  interest  in  seeking  his  relief  will  be 
an  insuperable  bar  to  relief  .^^^ 

Where  a  lessor  in  a  building  lease  has  the  option  to  buy  the  buildings, 
at  an  appraised  value  or  renew  the  lease,  he  must  declare  his  election 
to  renew  before  the  end  of  the  term.  But  in  the  absence  of  agreement, 
the  fact  of  the  election  could  be  shown  either  orally  or  by  writing,  the 
same  as  any  other  fact  not  required  to  be  in  writing.  There  was  there- 
fore no  necessity  for  any  formal  tender  of  a  new  lease  or  for  written 
notice ;  and  after  the  lessee  had  refused  to  sign  a  new  lease,  it  would  be 
an  idle  ceremony  to  tender  him  one,  and  the  law  would  not  require 
it."° 

§  340.  When  there  is  an  option  to  lessee  to  have  the  same  term 
extended,  no  notice  of  an  election  to  have  the  term  continue  is  neces- 

^^  Strousse  v.  Bank,  9  Colo.  App.  '^  Insurance   &c.    Co.   v.   National 

478,  484,  49  Pac.  260,  per  Thompson  Bank  &c.,  71   Mo.  58. 

J.  '°°  Banks  v.  Haskie,  45  Md.  207. 

^^  Renoud    v.    Daskam,    34    Conn.  "°  Darling  v.  Hoban,  53  Mich.  599, 

512.  19  N.  W.  545. 

^•"Thiebaud   v.   First  Nat.   Bank, 
42  Ind.  212. 


361  rOR  KEXEWAL  OF  LEASE.  [§  340 

sary  unless  it  is  required  by  a  clause  in  the  lease.  The  additional 
term  is  not  a  new  demise,  but  a  continuation  of  the  old  one.^^^  Where 
the  stipulation  is  for  an  extension,  and  no  requirement  for  notice  is 
made,  the  tenant's  mere  continuance  in  possession  and  payment  of 
rent,  though  without  express  notice,  entitles  and  binds  him  to  the  ex- 
tension.^ ^^  Actual  knowledge  on  the  part  of  the  owner  of  the  rever- 
sion that  the  lessee  elected  to  continue  the  lease  is  all  that  is  necessary 
to  make  it  good  for  the  extension.  No  particular  form  of  notice  is  re- 
quired by  law  in  such  cases,  the  controlling  consideration  being  what 
is  the  understanding  and  intent  of  the  parties.  Provided  no  particular 
form  is  stipulated  for  in  the  lease,  it  does  not  seem  to  be  one  of  the 
lessor's  legal  rights  that  knowledge  of  the  lessee's  election  should  be 
conveyed  to  him  in  any  one  given  form  more  than  another.^^^  "What 
more  was  wanted  than  knowledge  of  the  lessee's  intention?  The  con- 
trolling consideration  was  the  intention  of  the  parties."^^*  Thus,  mere 
holding,  even  for  a  few  days,  amounts  to  an  election  to  take  advantage 
of  the  option  for  the  longer  term.  It  would  be  presumed  that  the 
lessee  intended  to  continue  rightfully  according  to  the  terms  of  the 
lease,  rather  than  wrongfully  in  defiance  of  its  provisions.^^^  Conse- 
quently, there  are  cases  which  decide  that  where  the  provision  for  an 
extension  is  at  an  increased  rental,  the  holding  over  and  the  payment 
for  a  time  of  the  increased  rental  is  sufficient  evidence  of  an  election 
to  accept  the  extension. ^^'^  It  is  proof  of  an  election  to  renew  that  the 
lessee  pays  rent  regularly  after  the  expiration  of  the  lease  and  the 
landlord  accepts  it.^^^  The  same  rule  would  apply  where  the  privilege 
of  extension  was  conditional  upon  all  parties  agreeing.^^^ 

"^Terstegge  v.  First  German  &c.  R.  463;  Dann  v.  Spurrier,  3  B.  &  B. 

Soc,  92  Ind.  82;   Relying  on  Mont-  399,  442;   Doe  v.  Dixon,  9  East  15; 

gomery  v.  Board  &c.,  76   Ind.  362;  Cooper   v.    Joy,    105    Mich.    374,    63 

Chandler  v.  McGinning,  8  Kan.  App.  N.    W.    414;    Lyons   v.    Osborn,    45 

421,  55  Pac.  103.  Kan.  650,  26  Pac.  31;  Unger  v.  Bam- 

"'Mershon  v.  Williams,  62  N.  J.  berger,    6    Ky.    R.    447;     Voege    v. 

L.    779,    42    Atl.    778;     Kimball    v.  Ronalds,  31  N.  Y.  S.  353;    Scheelky 

Cross,  136  Mass.  300;  Stater  v.  Kim-  v.  Koch,  119  N.  Car.  80,  25  S.  E.  713. 

bro,  91  La.  217,  18  S.  E.  296.  '•"  Kramer      v.      Cook,      7      Gray 

"^Clarke  v.  Merrill,  51  N.  H.  415.  (Mass.)  550;  Stone  v.  St.  Louis  &c. 

"*Doe  v.  Morse,  1  B.  &  Ad.  365;  Co.,   155    Mass.   267,   29    N.    E.    623; 

Doe  v.  Biggs,  1  Taunt.  367.  Long  v.   Stafford,  103  N.  Y.  274,   8 

"'Holley    V.   Young,    66    Me.    520;  N.  E.  522. 

Insurance  &c.  Co.  v.  National  Bank  ""Harris  v.  Howes,  75  Me.  436. 

&c.,  5  Mo.  App.  333,  affirmed  71  Mo.  "'  Peehl  v.  Bumbalek,  99  Wis.  62, 

58;    Delashman   v.   Berry,   20   Mich.  74  N.  W.  545. 
292;   Ferguson  v.  Cornish,  3  Term 


§§  341,  343]  COVENANTS  IN  LEASES.  363 

§  341.  However  the  lessor  has  a  right  to  call  on  the  lessee  to  elect 
before  the  end  of  the  term  and  after  the  lessee  had  done  so  and  the 
lessor  had  acted  in  reliance  upon  such  election,  the  lessee  would  be 
estopped  to  change  his  intention.^^^  Without  regard  to  the  language 
of  the  lease  in  regard  to  notice  of  the  election  to  renew,  a  lessee  cannot 
change  his  mind  after  he  has  led  the  landlord  to  make  expenditures  on 
the  faith  of  his  statements  that  he  will  not  accept  the  renewal  term.^^° 
But  prior  statements  which  are  not  acted  upon  by  the  lessor  would  not 
defeat  his  right  to  exercise  his  option  up  to  the  end  of  the  term.  So 
a  statement  by  the  lessee  made  upon  the  occasion  of  the  lessor's  wrong- 
ful demand  for  an  increased  rent  would  not  bind  him.  And  general 
statements  of  an  intention  to  leave  made  to  third  parties  would  have 
no  efEect  in  the  absence  of  any  notice  to  the  lessor.^^^  Yet  the  tenant's 
announcement  of  his  intention  not  to  accept  the  extension  would 
override  the  presumption  arising  from  his  continuance  in  possession. 
The  mere  occupancy  of  the  land  at  and  after  the  expiration  of  the 
term  could  not  be  deemed  an  election  to  hold  it  for  the  extension 
period,  in  the  face  of  an  express  notification  of  a  different  election. ^*^ 
Where  a  lessee  gave  notice  to  the  lessor  of  his  election  not  to  accept 
the  longer  term,  and  entered  into  parol  agreement  to  hold  for  a  short 
time  till  he  could  get  a  building  completed,  such  parol  contract  was 
valid,  and  the  lessee  could  not  be  held  for  rent  for  the  longer  term.^^^ 

§  342.  A  requirement  for  notice  of  election  must,  in  the  absence 
of  waiver,  be  complied  with,  and  a  mere  holding  over  would  not 
extend  the  term.  The  rule  seems  to  be  well  settled  that  where  notice 
is  required  of  the  lessee's  intention  to  claim  the  extended  term,  notice 
must  be  given,  or  the  intention  must  be  otherwise  manifested,  and  that 
a  naked  holding  over  is  insufficient  to  warrant  a  finding  that  the  lease 
has  been  extended.^**  The  election  to  retain  the  premises  for  the  en- 
larged term  and  the  giving  notice  thereof  to  the  lessor  are  conditions 
precedent  to  the  extension  of  the  term.  In  case  of  failure  to  perform 
these  conditions,  the  term  expires  by  its  own  limitation,  the  lease  then 
becomes  inoperative,  and  the  lessor  is  entitled  to  the  possession  of  the 
premises.^^^    In  one  case  there  was  a  stipulation  that  by  the  giving 

"» Chandler  v.  McGinning,  8  Kan.        ^"  Barnett  v.  Feary,  101  Ind.  95. 
App.   421,   55    Pac.    103;    Barnett  v.         ^^^  Storch  v.   Harvey,   45  Kan.   39, 

Feary,  101  Ind.  95.  25  Pac.  220. 

""Greiner   v.   Cota,   92   Mich.    23,         ^^  Cooper  v.   Joy,   105   Mich.   374, 

52  N.  W.  77.  63  N.  W.  414. 

^^  Hughes  V.  Windpfennig,  10  Ind.         '"'  Bradford   v.   Patten,   108   Mass. 

App.  122,  37  N.  E.  432.  153. 


363  rOR  RENEWAL  OF  LEASE,  [§  342 

of  a  certain  notice  the  lease  itself  should  cover  an  additional  four 
years.  This  was  an  unconditional  lease  for  the  first  period  and  a  con- 
ditional lease  for  four  years  thereafter.  The  condition  was  the  giving 
of  a  certain  notice  by  the  lessee,  but  it  might  just  as  well  have  been  the 
happening  of  an  event  over  which  neither  party  had  control,  such  as 
the  death  of  a  person  or  the  falling  of  a  tree.  When  such  required 
event  happened,  the  condition  was  satisfied  and  the  lease  became  a 
lease  for  the  additional  period  by  its  own  terms.  The  act  of  the  lessee 
in  giving  notice  was  not  the  making  of  an  agreement,  but  the  perform- 
ance of  a  condition.^^*^  Accordingly,  the  requirement  for  written  no- 
tice may  be  waived  by  the  lessor.  There  is  a  waiver  when  notice  is  given 
by  parol  and  no  objection  is  made  because  it  is  not  in  writing,  there 
being  no  reason  why  such  a  right  as  this  should  not  be  waived  by  parol. 
Such  a  waiver  is  not  contrary  to  any  principle  of  public  policy  or  posi- 
tive law.  The  circumstances  in  which  rights  stipulated  for,  whether  in 
writing  or  otherwise,  may  be  waived  are  numerous  and  variant,  and  es- 
tablished by  many  decisions.  No  question  as  to  the  application  of  the 
statute  of  frauds  arises.  The  right  of  extension  was  fixed  by  and  was 
part  of  the  original  contract.  The  lease  itself  created  and  defined  the 
extension  term,  and  the  statute  of  frauds  had  nothing  to  do  with  the 
case.^^^  Moreover,  it  seems  that,  as  far  as  the  lessee  is  concerned,  he 
elects  to  exercise  the  option  for  an  extension  of  the  term  by  the  mere  act 
of  holding  over.  Though,  of  course,  such  acts  do  not  bind  the  lessor  be- 

""  Sheppard    v.    Rosenkrans,    109  creation  and  existence  upon  a  mere 

Wis.  58,  85  N.  W.  199.  oral   understanding.     This  is   inad- 

'"  McClelland  v.  Rush,  150  Pa.  St.  missible    under    the    statute    which 

57,  24  Atl.  354;  Bradford  v.  Patten,  makes  void  all  leases  for  more  than 

108   Mass.   153;    Stone  v.   St.   Louis  one  year  which   are   not  evidenced 

Stamping  Co.,  155  Mass.  267,  29  N.  by  writing.    This  statute  was  aimed 

E.   623.     Judge  Cooley  reached  the  at   precisely   such   mischiefs   as   ap- 

opposite  conclusion  on  similar  facts  pear   in    this    case,    where   an    oral 

in  the  case  of  Beller  v.  Robinson,  lease  for  years  is  set  up  against  the 

50  Mich.  264.     He  said:    "It  is  con-  denial  on  oath  of  the  supposed  les- 

tended,   however,   that  the   require-  sees  that  they  ever  made  it;  and  no 

ment  of  a  written  notice  was  one  mere  waiver  of  the  parties  can  ob- 

the  parties  might  waive,  and  that  viate  the  necessity  of  obeying  the 

they  did  waive  it  in  this  case  when  statute  in  such  a  case." 
the  defendants  gave  oral  notice  of        The    answer    to    these    objections 

tiaeir  intention  to  retain  possession  is  that  the  requirement  for  written 

and  the  plaintiffs  allowed  them  to  notice  is  created  by  the  agreement, 

do  so  as  if  the  notice  were  in  due  not  by  the  statute.     In  dispensing 

form.     But  the  difficulty  with  this  with    such    notice,    they    vary    the 

agreement  is  that  it  makes  an  es-  agreement,  but  not  the  statute, 
tate  for  three  years  depend  on  its 


§■  343]  COVENANTS  IN  LEASES.  364 

cause  there  lias  been  no  compliance  with  the  requirement  for  notice  in 
writing.  But  by  accepting  the  rent  the  lessor  has  been  held  to  waive  the 
requirement  for  notice.^^®  Acceptance  of  a  notice  not  seasonably  given 
is  a  waiver  of  the  condition  as  to  the  time  of  giving  notice.  There  are 
few  cases  where  the  time  within  which  an  act  is  required  to  be  done  may 
not  be  waived  by  the  parties  where  the  rights  of  others  are  not  affected, 
and  acceptance  of  the  notice  and  action  upon  it  without  objection  show 
an  undoubted  waiver.^^^ 

A  provision  for  giving  notice  of  election  pjior  to  the  end  of  the  term 
is  for  the  benefit  of  the  lessor  merely.  In  a  lease  where  thirty  days' 
notice  of  an  election  to  renew  at  an  increased  rent  was  required,  it  was 
provided  that  a  mere  holding  over  should  be  at  the  same  rent.  Lessee 
held  over,  paying  increased  rent,  but  without  giving  the  required 
notice.  It  was  held  he  had  elected  to  accept  the  extension  by  so  doing. 
No  writing  was  necessary,  and  no  formal  action,  if  in  fact  the  lessee 
elected  to  hold  for  the  longer  term,  and  if  he  gave  thirty  days'  notice 
of  the  election,  or  the  lessor  waived  the  giving  of  notice.  The  pro- 
vision that  if  the  lessee  held  over  the  rent  should  be  at  the  original 
rate  made  the  payment  of  increased  rent  significant.  These  facts  were 
enough  to  justify  a  jury  in  finding  an  election  to  continue  the  lease.^'**' 
In  one  case  a  lease  for  the  term  of  one  year  provided  that  it  should  be 
deemed  to  be  renewed  and  in  force  for  another  year  and  so  on  from 
year  to  year  unless  sixty  days'  notice  to  quit  was  given.  It  was  held 
that  sixty  days'  notice  prior  to  the  end  of  the  first  year  must  be  given 
to  terminate  tenancy,  even  though  the  lease  contained  a  covenant  on 
part  of  lessee  to  deliver  peaceable  possession  at  the  end  of  the  term.^®^ 

§  343.  Validity  of  covenants  to  renew. — A  covenant  to  renew  for 
another  term  carries  with  it  by  implication  an  agreement  to  renew  on 
the  same  terms  and  conditions  as  to  all  the  essential  conditions  of  the 
lease.  Such  a  covenant  is  not  void  for  uncertainty  because  of  the  fail- 
ure to  specify  the  terms.  The  words  used  imply  the  same  terms  as 
those  contained  in  the  first  lease,  except  any  provision  for  further  re- 
newal which  would  tend  to  create  a  perpetual  lease.  Such  a  provision 
must  be  supported  by  language  clear  and  certain,  and  could  not  be 
deduced  by  construction  from  a  general  agreement.^^^   The  words  "ex 

1^  Probst  V.  Rochester  &c.  Co.,  171  ""  Stone    v.    St.    Louis    Stamping 

N.  Y.  584,  59  App.  Div.  625,  64  N.  E.  Co.,  155  Mass.  267,  29  N.  E.  263. 

504;  Long  v.  Stafford,  103  N.  Y.  274,  ^°' Wilcox  v.  Montour  &c.  Co,  147 

8  N.  E.   522.  Pa.  St.  540,  23  Atl.  840. 

"''Sheppard    v.    Rosenkrans,    109  "^Kollock    v.    Scribner,    98    Wis. 

Wis.  58,  85  N.  W.  199.  104,  73  N.  W.  776;  Rutgers  v.  Hun- 


3G5  FOR  RENEWAL  OF  LEASE.  [§  34:3 

■vi  termini'  import  the  giving  a  new  lease  like  the  old  one,  with  the 
same  terms  and  stipulations,  at  the  same  rent,  and  with  all  the  essen- 
tial covenants."^  To  this  rule  there  is  one  exception,  equally  well  estab- 
lished with  the  rule  itself.  The  renewal  covenant  is  not  to  be  inserted 
in  the  new  lease ;  that  agreement  is  satisfied  and  exhausted  by  a  single 
renewal.  An  agreement  to  renew  toties  quoties  will  not  be  inferred  in 
the  absence  of  words  clearly  pointing  to  that  intention.^''*  Still,  a  cove- 
nant in  a  lease  for  the  perpetual  renewal  thereof  is  valid,  and  passes 
as  an  incidental  when  the  lease  is  assigned  by  a  proper  description.^®^ 
The  rule  in  England,  as  deduced  from  all  the  authorities,  has  been 
said  to  be  "that  a  covenant  to  receive  the  construction  of  perpetual  re- 
newal must  be  plain  and  distinct,  and  such  as  to  bear  no  other  con- 
struction without  force  and  violence  done  to  the  words  and  the  con- 
text.""® In  accordance  with  the  rule  that  an  ordinary  covenant  for  re- 
newal does  not  imply  a  perpetual  renewal  and  it  is  sufficient  to  give  a 
renewal  for  one  term  only,  a  lessor  agreeing  to  renew  or  pay  for 
improvements  satisfies  his  agreement  by  a  single  renewal,  and  after 
the  renewal  term  expires  can  recover  the  premises  without  paying  for 
improvements.^®^  However,  a  lessor's  covenant  to  buy  improvements 
at  the  end  of  the  term  or  renew  the  lease  binds  him  to  make  a  renewal 
for  a  substantial  period,  and  his  covenant  is  not  satisfied  by  making  a 
renewal  for  one  day.  "It  would  be  worse  than  farcical,"  say  the  court, 
"to  hold  that  within  the  contemplation  of  the  parties  to  this  lease  an 
extension  of  one  day  would  meet  its  requirements."  The  evident  in- 
tention was  that  the  lessor  should  buy  the  improvements  or  renew  the 
lease  for  the  period  of  the  original  term,  and  the  word  "extension" 

ter,  6  Johns  Ch.   (N.  Y.)   215;  Cun-  472;    Whitlock    v.    Duffield,    Hoffm. 

ningham   v.   Pattee,   99   Mass.    248;  Ch.  (N.  Y.)  110;  Price  v.  Assheton, 

Ranlett  v.  Cook,  44  N.  H.  512;   Mc-  1  Y.  &  Col.  Exch.  82;   Rickards  v. 

Adoo    V.    Callum,    86    N.    Car.    412;  Rickards,  2  Y.  &  Col.  Ch.  419,  427. 

Tracy  v.  Albany  Exch.  Co.,  7  N.  Y.  "*  Hyde    v.    Skinner,    2    P.    Wms. 

472;    Western  Transp.  Co.  v.  Lans-  196;   Davis  v.  Taylors  Co.,  3  Ridg. 

ing,  49  N.  Y.  499;  Hughes  v.  Wind-  P.  C.  395;    Tritton  v.  Foote,  2  Bro. 

pfennig,  10  Ind.  App.  122;   Carr  v.  Ch.  636,  s.  c.  2  Cox  Ch.  174;   Moore 

Ellison,    20    Wend.     (N.     Y.)     178.  v.    Foley,    6   Ves.    232;    Iggulden   v. 

Contra,  Laird  v.  Boyle,  2  Wis.  431.  May,  9  Ves.  325,  s.  c.  7  East  237. 

^"^  Cunningham  v.  Pattee,  99  Mass.  "=  Blackmore  v.  Boardman,  28  Mo. 

248;    Willis   v.   Astor,   4    Edw.   Ch.  420;   Diffenderfer  v.  St.  Louis  Pub. 

(N.  Y.)    594;   Rutgers  v.  Hunter,  6  Schools,  120  Mo.  447,  25  S.  W.  542. 

Johns.  Ch.   (N.  Y.)   215;   Carr  v.  El-  ""Browne  v.  Tighe,  8  Bligh  N.  S. 

lison,   20  Wend.    (N.  Y.)    178;    Pig-  272;  Banks  v.  Haskie,  45  Md.  207. 

got  V.  Mason,  1  Paige  (N.  Y.)   412;  ""King  v.  Wilson,  98  Va.  259,  35 

Tracy  v.  Albany  Exch.  Co.,  1  N.  Y.  S.  E.  727. 


§  344]  COVENANTS  IN  LEASES.  366 

was  used  with  that  meaning.  The  construction  claimed  by  the  lessor 
would  make  the  contract  very  one-sided. ^^^ 

Many  adjudications  may  be  found  to  the  effect  that  covenants  to 
renew  must  specify  the  terms  and  conditions  of  the  renewal  or  fail  for 
want  of  certainty,  but  that  requisite  is  met  and  satisfied  by  the  con- 
struction of  the  general  promise  to  renew  in  connection  with  the  lease 
to  which  it  refers.  When  the  agreement  for  a  renewal  contains  lan- 
guage other  than  that  appropriate  to  a  general  promise,  so  that  by 
resort  to  the  settled  rules  for  construction  the  language  of  the  general 
covenant  to  renew  and  conditions  of  the  renewal  cannot  be  made  cer- 
tain, then  such  covenant  fails  for  want  of  certainty.^^**  The  ordinary 
meaning  of  a  renewal  clause  is  that  the  lessees,  may  have  the  premises 
for  the  same  rent  they  have  been  paying.  To  allow  the  lessor  to  change 
the  terms  of  the  proposed  renewal  is  to  remove  the  binding  force  of  his 
obligation  altogether. 2"** 

Where  it  appeared  that  the  owners  had  been  in  the  habit  of  renewing 
a  lease  from  time  to  time,  an  attempt  was  made  to  give  this  fact  the 
aspect  of  an  English  customary  tenant  right.  But  the  evidence  merely 
showed  that  the  landlords  and  the  tenants  were  mutually  satisfied  and 
were  likely  to  keep  on  together.  Changeable  intentions  are  not  an  in- 
terest in  land,  and  although  no  doubt  such  intentions  may  have  added 
practically  to  the  value  of  a  holding,  they  could  not  be  taken  into  ac- 
count in  estimating  damages.  They  added  nothing  to  a  tenant's  legal 
rights,  and  legal  rights  are  all  that  must  be  paid  for.  Even  if  such 
intentions  added  to  the  saleable  value  of  the  lease,  the  addition  would 
represent  a  speculation  on  a  chance,  not  a  legal  right.^°^  In  another 
case  the  opposite  result  was  reached,  on  the  ground  that  it  was  not  a 
question  of  the  permanency  of  the  title,  but  of  the  saleable  value  of 
such  interest  as  the  lessee  had.  It  could  be  shown  that  the  premises, 
though  held  by  a  precarious  tenure,  had  a  large  market  value,  and 
the  jury  had  a  right  to  consider  the  probability  of  a  renewal  of  the 
term.-°^ 

§  344.  A  renewal  agreement  cannot  be  made  to  apply  to  sub- 
divisions of  the  premises  but  must  be  claimed  in  its  entirety.     If  the 

^««  Phillips  V.  Reynolds,  20  Wash.  =<»  McAdoo  v.   Galium,   86  N.  Car. 

374,  55  Pac.  316.  419. 

"» Tracy   v.   Albany   Bxch.   Co.,   7  ^'  Emery  v.  Boston  Terminal  Co., 

N.  Y.   472;    Kollock  v.   Scribner,  98  178  Mass.  172,  59  N.  E.  763. 

Wis.  104,  73  N.  W.  776;  Whitlock  v.  =»=  Mayor  &c.  v.  Rice,  73  Md.  307, 

Duffield,    Hoff.    Ch.     (N.    Y.)     110;  21  Atl.  181. 
Abeel  v.  Radcliff,  13  Johns.  (N.  Y.) 
297. 


367  POR  RENEWAL  OF  LEASE.  [§  345 

privilege  of  another  term  is  of  the  entire  premises,  it  follows  that,  by 
voluntarily  surrendering  a  part  of  them,  the  lessee,  in  the  absence  of 
an  agreement  to  the  contrary,  waived  his  right  to  a  renewal  or  exten- 
sion of  the  lease.  The  option  would  be  for  a  lease  of  the  entire  prem- 
ises, and  not  of  a  part  of  them.^°^  However,  a  lessor  cannot  refuse  to 
grant  a  renewal  on  the  ground  that  parts  of  the  premises  have  passed 
to  different  owners.  A  lease  with  a  privilege  of  renewal  contained  a 
covenant  upon  the  part  of  the  lessee  to  sublet  to  certain  persons  who 
were  in  possession  of  different  parts  of  the  premises  under  ground 
leases.  The  original  lease  was  assigned,  and  the  assignee  and  the  vari- 
ous sub-tenants  applied  for  a  renewal  of  the  lease.  It  was  granted 
that,  as  the  lessee  could  not  renew  for  a  part  of  the  premises,  his  as- 
signee could  not  do  so.  But  all  the  assignees  might  join  in  asking  the 
lessee  to  secure  a  renewal  and  force  him  to  act  in  their  behalf.  So  the 
landlord,  after  leading  the  assignees  to  believe  he  would  deal  with 
them  directly  and  not  insist  on  action  by  the  lessee,  could  not  deny 
the  renewal  right  to  any  one  of  the  various  parties  claiming  it.^°* 

§  345.  Parties  bound  and  parties  entitled  under  renewal  agree- 
ments.— In  case  there  are  several  lessees,  one  of  them  has  no  power  in 
the  absence  of  special  authority  to  extend  a  renewal  agreement  by 
giving  the  required  notice.  There  could  be  no  action  without  the  con- 
currence of  all.  Any  one  of  the  lessees  had  the  right  to  object  to  the 
extension  of  the  lease,  or  to  have  a  voice  in  saying  what  terms  were 
satisfactory  if  a  new  lease  were  entered  into.^**^  But  where  a  lessor 
who  is  under  obligations  to  grant  a  renewal  lease  dies,  the  lessee  is  en- 
titled to  have  the  lease  renewed  by  every  one  who  had  or  claimed  to 
have  an  interest  in  the  property  as  the  representative  of  the  lessor. 
All  real  and  supposed  interests  should  unite  in  the  renewal  of  the 
lease,  and  leave  it  open  for  future  decree  to  determine  their  inter- 
ests.^°®   On  the  other  hand,  the  death  of  the  lessee  does  not  render  the 

^°'  Barge  v.  Schick,  57  Minn.  155,  for  the  entire  renting  and  the  grain 

58  N.  W.  874.  rent  would  pay  for  the  pasture  land 

^*  Cook  v.  Jones,   96  Ky.   283,   28  during   the   continuance   of   the   re- 

S.  W.  960.     In  one  case  there  was  a  newal  term.    Miller  v.  Finch,  12  111. 

lease  of  a  farm  of  eighty  acres  for  App.   170. 

a  stipulated  sum,  fifty  acres  being  ^=  Howell    v.    Behler,    41    W.    Va. 

in  grain  and  the  rest  being  in  pas-  610,  24  S.  E.  646. 

ture,  with  option  in  lessee  to  lease  ''^'  Bratt  v.  Woolston,  74  Md.  609, 

for  two  years  longer  for  same  sum  7  Atl.  563. 
or  for  crop  rent.  This  was  a  contract 


§    3-16]  COVEXAXTS    IX   LEASES.  368 

covenant  invalid  or  inoperative;  the  legal  transferee  of  the  term  may 
exercise  the  right  to  have  a  renewal.-"^ 

§  346.  Where  there  is  an  agreement  for  arhitration  to  fix  the 
amount  of  rent  in  a  renewal  lease  and  the  landlord  is  ready  to  pro- 
ceed, but  the  lessee  refuses  to  do  so  after  being  notified,  the  landlord 
can  collect  the  rent  which  he  notified  a  tenant  he  should  charge  after 
the  expiration  of  the  former  term.-**^  But  the  landlord  could  not  sue 
for  a  reasonable  rent  without  showing  that  he  had  tried  and  failed  to 
have  an  appraisal  made,  as  provided  in  the  lease.  In  case  the  rent 
under  a  lease  is  to  be  fixed  by  appraisal,  then,  if  the  referees  appointed 
under  the  contract  or  lease  to  make  the  appraisal  are  unable  to  make 
it,  the  lessor  will  be  entitled  to  sue  for  a  reasonable  rent.  This  right 
to  sue  depends  upon  a  condition  precedent,  namely,  his  having  tried  to 
get  the  rent  fixed  in  pursuance  of  the  terms  of  the  lease,  and  failing  to 
do  so.^^®  At  the  end  of  the  term  the  parties  failed  to  agree  upon  a  sale 
or  renewal  in  one  case,  and  referees  were  chosen,  who  made  and  signed 
upon  the  lease  the  following  indorsement :  "This  lease  is  renewed  by 
arbitration,  for  the  term  of  five  years,  at  the  yearly  rent  .  .  .  pay- 
able on  the  same  terms  as  the  first  five  years,  excepting  from  the  op- 
eration of  this  lease  any  assessment  for  stone  pavements."  The  sense 
of  this  award  was  held  to  be  plain  enough,  and  while  the  lessee  might 
be  at  liberty  to  refuse  to  abide  by  it  because  it  bound  him  to  pay  ordi- 
nary taxes,  after  he  accepted  it  the  lease  was  renewed  upon  the  original 
terms,  with  the  exception  made  by  the  referees  themselves  and  the 
further  exception  of  the  provision  for  renewal  which  had  spent  itself.-^" 

A  contract  to  renew  at  a  rate  of  rent  fixed  by  arbitration  will  not  be 
specifically  enforced  in  equity  until  the  arbitration  is  complete.  It  is 
well  settled  that  courts  of  equity  will  never  entertain  a  suit  to  compel 
parties  specifically  to  perform  an  agreement  to  submit  to  arbitra- 
tion.^^ ^   So  the  real  ground  of  the  difficulty  is  that  the  contract  is  still 

^"Kolasky  v.  Michels,   120   N.   Y.  ""Brand  v.  Frumveller,  32  Mich. 

635,  24  N.  E.  278;  Kolasky  v.  Mich-  215. 

els,  2  Silv.  (N.  Y.)  581,  affirming  46  "^  Greason   v.   Keteltas,   17   N.   Y. 

Hun  677.  491;      City     of     Providence     v.     St. 

="^  Wells  V.   DeLeyer,   1   Daly    (N.  John's   Lodge,   2  R.   I.   46;    Dike  v. 

Y.)    39.'  Greene,  4  R.  I.  285;  Gourlay  v.  Duke 

^  Sherman  v.  Cobb,  16  R.   I.   82,  of  Somerset,  19  Ves.  429 ;  Milnes  v. 
12  Atl.  232;   Phippen  v.  Stickney,  3  Gery,  14  Ves.  400;   Blundell  v.  Bret- 
Mete.     (Mass.)    384,    389;     Stose.  v.  targh,  17  Ves.  232;    Morgan  v.  Mil- 
Heissler,  8  West.  R.  441,  445;  Uhrig  man,  17  E.  L.  &  Eq.  203. 
V.  Williamsburg  City  Fire  Ins.  Co., 
101  N.  Y.  362,  4  N.  E.  745. 


369  FOR  RENEWAL  OF  LEASE.  •    [§  347 

incomplete,  the  parties  not  having  fixed  the  amount  of  rent  to  be  paid, 
which  is  an  essential  ingredient  in  the  lease  to  be  made.  The  contract 
which  the  court  is  called  on  to  enforce  is  not  an  existing  contract.  Its 
terms  are  still  to  be  settled  by  arbitrators.-^^  However,  there  seems  to 
be  a  doctrine  in  the  later  cases  that  equity  will,  to  prevent  a  failure  of 
justice,  apply  its  own  remedies,  and  thus,  where  the  substantial  terms 
of  a  contract  are  agreed  upon,  arrive  approximately  at  the  minor  de- 
tails and  then  specifically  enforce  the  contract.^^^  In  the  case  of  a 
covenant  of  this  kind,  it  is  obvious  that  it  is  not  of  the  essence  of  the 
contract  that  the  valuation  should  be  made  by  appraisers  rather  than 
by  a  court  of  equity.  That  is  an  immaterial  detail,  and  a  mode  as 
effectual  and  fair  can  be  found.^^^  The  case  presents  a  slightly  differ- 
ent aspect  when  the  option  lies  with  the  lessor  to  renew  or  to  buy  or 
sell  the  premises  at  an  appraised  valuation.  Where  the  lessor  failed 
to  exercise  his  option,  and  the  lessee  elected  to  buy,  it  was  held  that  an 
action  for  rent  during  the  renewal  period  "would  be  enjoined  until  the 
lessor  had  appointed  an  appraiser  to  value  the  land  in  accordance  with 
the  terms  of  the  lease.^^^ 

The  weight  of  American  authority  supports  the  conclusion  that  in 
cases  of 'the  same  general  character  as  this  equity  will  take  jurisdiction 
and  grant  such  relief  as  may  seem  to  be  most  expedient  or  most  in 
accord  with  the  spirit  of  the  agreement  looking  to  the  sale  of  the 
property.2^^  So,  where  a  lease  provided  that  there  should  be  a  revalu- 
ation for  rent  every  ten  years,  and  such  revaluation  became  impossible 
because  of  the  infancy  of  some  of  the  parties,  it  was  held  that  a  party 
injured  could  resort  to  a  court  of  equity  for  redress  and  to  have  a 
proper  valuation  made  under  the  direction  of  the  court.  Such  action 
is  not  equivalent  to  an  award  or  arbitration  within  the  technical  mean- 
ing of  those  terms.^^'^ 

§  347.  A  conditional  covenant  to  renew  upon  the  termination  of 
the  lease  is  not  a  present  demise  to  take  effect  upon  the  termination 
of  the  first  year,  but  a  mere  covenant  to  execute  a  lease  in  the  future. 

"=  Hopkins  v.  Gilman,  22  Wis.  476.  Tscheider  v.  Biddle,  4  Dill.   (U.  S.) 

"^  Strohmaier  v.  Zeppenfeld,  3  Mo.  55. 

App.    429;    Backus'    Appeal,    58    Pa.  ""Lowe    v.    Brown,    22    Ohio    St. 

St.  186,   193;    Parker  v.   Taswell,  2  463;   Tobey  v.  County  of  Bristol,  3 

De  G.  &  J.  559;   Norris  v.  Jackson,  Story   (U.  S.)    800;   Biddle  v.  Ram- 

3  Gif.  396.  sey,  52  Mo.  153;  Hug  v.  Van  Burk- 

"'  Strohmaier  v.  Zeppenfeld,  3  Mo.  leo,  58  Mo.  202. 

App.  429.  =="  Holmes  v.  Shepard,  49  Mo.  600. 

="  Coles    v.    Peck,    96    Ind.    333; 
Jones  L.  &  T.— 24 


§  347]  COVENANTS  IN  LEASES.  370 

The  evident  intention  of  the  parties,  as  disclosed  by  such  a  stipula- 
tion, is  that  if  the  contingency  named  does  not  occur  a  new  lease  is  to 
be  executed  for  a  second  year.  It  is  merely  an  executory  covenant  for 
a  lease,  and  not  an  executed  covenant  passing  a  present  interest.  If  the 
lessee  never  accepts  a  renewal  of  the  lease,  but  refuses  to  do  so,  and 
vacates  the  premises  at  the  end  of  the  original  term,  the  lessor  cannot 
maintain  an  action  for  rent.  His  only  remedy  would  be  either  an  ac- 
tion to  enforce  specific  performance  of  the  covenant  by  compelling  the 
lessee  to  accept  a  renewal  or  an  action  on  the  covenant  for  damages  for 
its  breach.^^^  Where  there  was  a  lease  for  a  year  and  agreement  that 
if  it  were  satisfactory  the  premises  would  be  leased  to  him  another 
year,  it  was  held  that  the  tenant  did  not  have  an  estate  in  the  land  for 
the  second  year.^^^  In  the  absence  of  conditions,  however,  a  lessee,. 
having  exercised  his  right  to  demand  a  renewal  of  an  expiring  lease,  is. 
entitled  to  it,  and  to  remain  in  possession  as  long  as  he  complies  with 
its  requirements  and  conditions.  Although  a  provision  for  renewal  is. 
not  itself  a  renewal  so  as  to  vest  an  estate  in  the  lessees  for  the  suc- 
cessive term,  it  gives  them  an  equity  which  will  be  recognized  as  a  de- 
fense to  a  proceeding  for  the  ejectment  of  the  lessees  under  the  sum- 
mary process  provided  in  the  statute  against  tenants  holding  over  after 
the  expiration  of  their  term.  But  the  lessees  asserting  their  right  to- 
retain  the  possession  must  take  it  cum  onere  and  pay  the  rent.^^° 

Stipulations  that  a  lessee  should  notify  the  landlord  of  his  election 
before  a  certain  date,  and  that  he  should  secure  future  rent  on  that 
date  to  the  satisfaction  of  the  landlord,  take  effect  as  conditions  pre- 
cedent to  the  renewal,  and  the  lessee  is  bound  to  comply  with  them 
without  notice  or  demand.  Such  conditions  are  most  evidently  prece- 
dent to  the  renewal  or  continuance  in  force  of  the  lease,  and  unless 
they  are  performed  the  instrument  ceases  to  operate  for  a  future  term. 
The  one  act — notice — is  no  more  essential  than  the  other,  and  if  one 
could  be  omitted  both  could  be.  A  demand  upon  the  lessee  is  unneces- 
sary to  defeat  the  lease  upon  his  failure  to  perform  its  conditions. 
The  instrument  was  not  to  become  forfeited  upon  failure  to  give  the 
notice  and  security,  but  was  to  be  kept  in  force  by  these  acts.  If  it 
became  forfeited  upon  a  failure  to  perform,  then  a  demand  for  per- 
formance might  be  required.  But  as  these  acts  were  to  renew,  to  keep 
it  in  force,  no  demand  was  necessary.  In  the  first  case,  it  would  not 
have  been  forfeited  except  upon  the  act  or  option  of  the  lessor ;  in  the 

="^  Sutherland  v.  Goodnow,  108  111.         «» Mullen   v.   Pugh,   16    Ind.   App. 
528;  Swank  v.  St.  Paul  City  R.  Co.,     337.  45  N.  E.  347. 
61  Minn.  423,  63  N.  W.  1088.  "» McAdoo  v.  Galium,  86  N.  Gar. 

419. 


I 


3T1  rOR  RENEWAL  OF  LEASE.  [§  348 

last,  it  ceased  to  operate  unless  certain  acts  were  done  by  the  lessee, 
and  no  act  of  the  lessor  was  required  to  terminate  its  operation.  The 
lessee's  acts  being  necessary  to  keep  the  instrument  in  force,  he  was 
bound  to  perform  them  without  notice  or  demand.^^^ 

§  348.  Happening  of  contingency. — A  covenant  by  lessees  to  take 
a  further  term  in  the  premises  in  case  the  lessor  purchased  them  would 
only  become  binding  upon  the  lessor  acquiring  the  legal  title.  The 
only  contingency  upon  which  the  lessees  were  required  to  renew  was 
that  the  lessor  should,  during  the  term  mentioned  in  the  lease,  "pur- 
chase the  title  in  fee  simple  to  the  premises."  This  condition  was  not 
satisfied  by  a  mere  agreement  for  such  title,  and  a  title  acquired  sub- 
sequently was  not  available  to  the  lessor.^"^  Where  a  lease  contained  an 
option  to  the  lessee  to  renew  provided  lessor  did  not  sell  the  farm,  it 
was  held  that  an  open  sale  was  intended,  and  that  in  the  absence  of 
notice  of  a  sale  brought  home  to  lessee,  the  vendee  with  notice  of  the 
lease  would  be  bound  by  the  contract  in  regard  to  the  option  entered 
into  between  the  lessor  and  lessee. -^^  Where  a  lease  for  the  term  of  one 
year  with  the  privilege,  if  both  parties  are  suited,  of  longer  lease  for  a 
term  of  eight  years,  reserves  the  right  to  sell  part  or  all,  the  fair  con- 
struction is  that  the  lease  should  terminate  upon  a  sale  of  the  premises 
or,  if  of  a  portion  of  them,  as  to  the  part  sold.-^*  In  case  a  covenant  for 
renewal  was  to  be  void  if  the  premises  were  sold,  it  was  held  that  the 
sale  might  take  place  before  or  after  the  renewal  began  to  run,  and 
nevertheless  have  the  effect  of  nullifying  the  covenant  for  renewal. 
By  the  fair  construction  of  the  language  used,  the  privilege  of  the  two 
years  was  to  be  void  in  case  of  a  sale  of  the  premises  at  any  time  either 
before  the  two  years  should  commence  or  after  they  were  running. 
There  was  no  limitation  of  time  within  which  the  sale  spoken  of  should 
take  place  in  order  to  terminate  the  privilege.^^^ 

A  stipulation  in  a  lease  for  two  years  that  if  the  lessor  sells  within 
the  first  year  the  sale  shall  be  subject  to  the  lease  for  that  year,  and  if 
afterwards  that  it  shall  be  subject  to  the  lease  for  the  two  years,  or  to 
such  compromise  as  the  parties  shall  enter  into,  requires  the  lessee  to 
give  up  possession  at  the  end  of  the  first  year  if  sale  is  made  within 
that  year.^^^ 

="  McFadden  v.  McCann,  25  Iowa  =^  Wallace  v.   Bahlhorn,   68  Mich. 

252.  87,  35  N.  W.  834. 

="  Elevator  Co.  v.  Brown,  36  Ohio  -' Knowles  v.  Hull,  97  Mass.  206. 

St.  660.  "'  Jochen  v.  Tibbells,  50  Mich.  33, 

="  Starkey  v.  Horton,  65  Mich.  96,  14  N.  W.  690. 
31  N.  A.  626. 


349]  COYEXAXTS  IX  LEASES. 


III.    For  Quiet  Enjoyment. 

§  349.  When  implied. — To  give  value  to  the  interest  of  a  lessee  it 
is  essential  that  his  possession  of  the  premises  should  not  be  disturbed 
by  one  holding  a  paramount  title  or  by  the  lessor  himself.  This  is 
often  provided  for  by  an  express  covenant  in  the  lease,  or  such  a  cove- 
nant is  raised  as  an  implication  of  law  from  the  words  used  to  transfer 
the  estate.  Leases  were  not  originally  regarded  as  estates  in  the  land, 
but  as  contracts  for  the  perception  of  the  profits.  The  possession  of  the 
lessee  was  not  regarded  as  in  his  own  right,  but  as  the  possession  of 
the  grantor,  and  the  destruction  of  the  freehold  was  attended  with 
the  destruction  of  the  lease,  giving  a  lessee  no  means  of  redress  except 
upon  the  contract.  A  warranty,  therefore,  is  implied  in  a  lease  in  a 
different  sense  from  the  implied  warranty  in  a  freehold.  The  latter 
depends  on  tenure,  the  former  on  contract.  The  remedies,  too,  were 
originally  different.  Hence  a  warranty  is  implied  from  any  contract 
for  the  possession  of  lands  amounting  to  a  lease  for  years,  no  matter 
in  what  words  it  is  framed ;  but  a  warranty  of  a  freehold  is  not  implied 
except  from  the  feudal  term  of  donation.  No  other  word  will  answer — 
the  words  "grant,  bargain  and  sell"  raise  no  warranty  of  a  fee.--' 
But  the  words  "grant  and  demise''^^  and,  when  standing  alone,  the 
word  "demise"  in  a  lease  import  a  covenant  on  the  part  of  the  lessor  of 
good  right  and  title  to  make  the  lease  and  for  quiet  enjoyment.--^ 

The  prevailing  rule  in  the  United  States  seems  to  be  that  a  covenant 
for  quiet  enjoyment  by  the  lessor  is  implied  in  every  demise  of  land  for 
years,  by  whatever  form  of  words  the  agreement  is  made.^^o  Although 

"^  Young  V.  Hargrave,  7  Ohio  394.  v.  Saunders,  4  B.  &  C.  529,  10  E.  C. 

"^Barney  v.  Keith,  4  Wend.    (N.  L.  689. 

Y)   502,  230  Arkansas:    Pickett  v.  Ferguson, 

^»  Harms  v.   McCormick,   132    111.  45  Ark.  177.     California:    McDowell 

104,    22    N.    E.    511;     Hamilton    v.  v.  Hyman,  117  Cal.  67,  48  Pac.  984. 

Wright,    28     Mo.    199;     Crouch    v.  Illinois:     Field   v.    Herrick,   10    111. 

Fowle,  9  N.  H.  219;   Style  v.  Hear-  App.   591;    Streeter  v.    Streeter,   43 

ing,  Cro.  Jac.  73;  Merrill  v.  Frame,  111.    155.      Maryland:      Baugher    v. 

4  Taunt.  329;   Adams  v.  Gibney,  6  Wilkins.    16    Md.    35;    Sigmund    v. 

Bing.  656;   Conrad  v.  Morehead,  89  Howard    Bank,    29    Md.    324.      New 

N.  Car.  31.     The  word  "demise"  in  York:     Mack  v.   Patchin,   42   N.   Y. 

a   pleading  imports   a  title   in   the  167,  1  Am.  R.  506;  Burr  v.  Stenton, 

lessor  and   implies  a  covenant  for  43   N.  Y.  462.     Indiana:    Hoagland 

quiet   enjoyment.      The   point   here  v.   New  York  &c.   R.   Co.,   Ill   Ind. 

was  entirely  one   of  pleading,   and  441,  12  N.  E.  83;   Avery  v.  Dough- 

the  lease  itself  was  not  in  evidence,  erty,  102  Ind.  443,  2  N.  E.  123,   52 

Wells  V.  Mason,  5  111.  84,  citing  Hill  Am.  R.  680;  Smith  v.  Dodds,  35  Ind. 


373  FOR    QUIET    EXJOYMEXT.  [§    350 

the  words  "grant  and  demise"  were  not  used  in  a  lease,  but  the  word 
'lease"  was  used  instead,  it  was  held  that  a  covenant  for  quiet  enjoy- 
ment could  be  implied  from  this  word  as  well  as  from  the  other  two.^^^ 
As  far  as  the  tenant's  rights  are  concerned,  according  to  this  doctrine, 
it  is  immaterial  whether  the  lease  contains  such  a  covenant  or  not.'^^ 
The  law  will  imply  a  covenant  against  paramount  title  and  against 
such  acts  of  the  landlord  as  destroy  the  beneficial  enjoyment  of  the 
lease. -^^  On  the  other  hand,  there  is  a  more  restricted  doctrine  that  a 
covenant  for  quiet  enjoyment  is  not  to  be  implied  from  the  mere  rela- 
tion of  landlord  and  tenant,  but  only  arises  from  the  use  of  certain 
special  words.  This  is  the  rule  in  England,  and  is  supported  by  some 
cases  in  the  United  States.-^*  According  to  this  doctrine,  the  mere 
use  of  the  words  "to  let"  and  "to  lease"  in  a  WTitten  agreement  of  let- 
ting or  leasing  will  not  give  rise  to  an  implied  covenant  for  quiet  en- 
joyment. In  order  to  give  rise  to  such  a  covenant,  the  words  "demise," 
"grant,"  or  other  words  of  like  import  must  be  used  in  the  lease.  The 
words  "to  let"  and  "to  lease"  are  not  of  such  import.-^^  The  New 
Hampshire  court,  considering  this  question  in  1843,  made  the  sweep- 
ing assertion  that  "iSTo  case  is  to  be  found  where  the  words  'let  and 
lease'  imply  a  covenant  for  quiet  enjoyment."-^*' 

If  the  parties  to  a  lease  contemplate  a  possible  sale  of  the  premises 
under  a  right  reserved  in  the  lease,  and  a  consequent  termination  of 
the  tenancy,  it  would  be  against  the  intention  of  the  parties  to  imply 
a  covenant  which  amounts  to  a  warranty  against  an  eviction  by  a  pur- 
chaser of  the  land.  A  provision  allowing  the  lessee  to  remove  his  im- 
provements in  case  of  a  sale,  which  were  otherwise  to  be  left  on  the 
premises,  supports  this  construction,  and  compensates  the  lessee  for 
the  loss  of  the  balance  of  the  term.^^^ 

§  350.  The  rule  that  where  an  instrument  contains  an  express 
covenant,  in  regard  to  any  subject,  no  covenants  are  to  be  implied  in 

452.     Ohio:     Young  v.  Hargrave,   7  rington  v.  Casey,  78  III.  317;   Field 

Ohio    394.      Oklahoma:      Hanley    v.  v.  Herrick,  10  111.  App.  591. 

Banks,    6    Okla.    79,    51    Pac.    664.  =^  Gano  v.  Vanderveer,  34  N.  J.  L. 

Pennsylvania:     Maule   v.   Ashmead,  293;   Mershon  v.  Williams,  63  N.  J. 

20  Ea.  St.  482.     Wisconsin:    Eldred  L.  398,  44  Atl.  211;  Granger  v.  Col- 

v.     Leahy,     31     Wis.     546.       United  lins,  6  M.  &  W.  458. 

States:     Owens  v.    Wight,    18    Fed.  =='=  Mershon  v.  Williams,   63  N.  J. 

865;  Rawle  Gov.  Tit.   (5th  Ed.)  272.  L.  398,  44  Atl.  211. 

-^^  Hamilton  v.  Wright,  28  Mo.  199.  ='°  Lovering  v.  Levering,  13  N.  H. 

'^'  Hanley  v.  Banks,  6  Okla.  79,  51  513. 

Pac.  664.  =»^  O'Connor   v.    Daily,    109    Mass. 

=''Wade  V.  Halligan,  16   111.  507;  235. 
Hayner  v.  Smith,  63  111.  430;   Ber- 


§  350]  COVEKANTS  IX  LEASES.  374 

respect  to  the  same  subject,  has  been  declared  to  be  too  familiar  to  re- 
quire more  than  its  statement.-^^  "An  express  covenant,"  it  is  stated 
in  Cruise  on  Eeal  Property,  "will  qualify  the  generality  of  an  im- 
plied covenant,  and  restrain  it  so  that  it  shall  not  extend  farther  than 
the  express  covenant."^^^  But  at  common  law  other  covenants  may  be 
implied  in  addition  to  express  covenants,  provided  they  are  not  incon- 
sistent with  those  which  are  expressed.^*"  Since  the  days  of  Lord 
Coke  it  has  been  considered  settled  law  that,  although  there  may  be 
both  express  and  implied  covenants  in  a  lease,  yet  the  covenants  im- 
plied from  the  use  of  the  words  of  demise  will  be  modified  or  re- 
strained by  express  covenants.^*^  The  implied  covenant  for  quiet  en- 
joyment arising  from  the  use  of  the  word  "demise"  in  a  lease  is  modi- 
fied and  restrained  by  the  presence  of  an  express  covenant  on  the  part 
of  the  lessor  to  the  effect  that  he  covenants  against  interruption  by 
himself  or  his  successors.  "The  parties  ha\dng  entered  into  express 
agreements,  it  cannot  be  supposed  that  they  intended  by  any  general 
language  of  the  deed  anything  inconsistent  with  those  express  cove- 
nants or  which  might  otherwise  have  implied  an  undertaking  of  a 
more  enlarged  character."-*^  But  an  express  and  unqualified  general 
covenant  for  quiet  enjoyment  in  a  lease  is  not  limited  by  a  subsequent 
special  covenant  reciting  that  certain  persons  had  an  interest  in  the 
premises  and  binding  the  lessor  to  hold  the  lessee  harmless  against 
such  claims.-*^ 

A  guardian  leasing  land  of  ward  cannot  bind  his  ward's  estate  by 
a  general  covenant  for  quiet  enjoyment ;  like  executors  and  trustees, 
he  can  only  covenant  against  having  suffered  any  act  which  would 
impeach  the  title.  Therefore,  when  a  guardian  covenants  generally  for 
quiet  enjoyment,  he  is  personally  liable  on  his  undertaking,  and  the 
ward's  estate  is  not  bound  by  it.-** 

'^Burr  v.  Stenton,  43  N.  Y.  462;  7  Lea   (Tenn.)   219;   Nokes'  Case,  4 

Vanderkarr      v.      Vanderkarr,      11  Coke  80. 

Johns.    (N.  Y.)    122;   Frost  v.  Ray-  ="  Crouch  v.  Fowle,  9  N.  H.  219; 

mend,  2  Caines   (N.  Y.)   188;   Blair  Browning  v.  Wright,  2  B.  &  P.  13, 

V.   Hardin,   1   A.   K.   Marsh.    (Ky.)  26;  Tooker  v.  Grotenkemper,  1  C.  S. 

231;   Crouch  v.  Fowle,  9  N.  H.  219;  C.  R.    (Ohio)    88;   Groome  v.  Ogden 

Line  v.   Stephenson,   5   Bing.   N.   C.  City    Corporation,    10    Utah    54.    37 

183.  Pac.  90;    O'Connor  v.  City  of  Mem- 

=^ Cruise  Dig,  Vol.  4,  p.  370,  §  17.  phis,  7  Lea   (Tenn.)   219. 

^^  Sumner    v.    Williams,    8    Mass.  ""  Sheets  v.  Joyner,  11   Ind.  App. 

162,  201;  Gates  v.  Caldwell,  7  Mass.  205. 

68;   Christine  v.  Whitehill,  16  S.  &  ="  Chestnut  v.  Tyson,  105  Ala.  149, 

R.    (Pa.)    98.  16  So.  723. 

^^  O'Connor  v.   City   of  Memphis, 


375  FOR    QUIET    EXJOYMEXT.  [§    351 

§351.  Statutory  provisions  against  implied  covenants. — In  N'ew 
York  it  is  provided  by  statute  that  a  covenant  is  not  to  be  implied  in 
a  conveyance  of  real  estate,  whether  the  conveyance  contains  any 
special  covenant  or  not,-*^  It  has  been  held  that  this  section  was  not 
applicable  to  leases  for  years,  that  such  leases  were  not  conveyances 
of  land  within  the  meaning  of  the  statute,  and  that  in  such  leases 
covenants  for  quiet  enjoyment  were  implied.^*^  As  used  in  this  sec- 
tion, the  term  real  estate  has  been  defined  to  mean  "lands,  tenements 
and  hereditaments,"  while  in  another  place  it  was  defined  by  the  legis- 
lature to  embrace  all  chattels  real  except  leases  for  a  term  not  exceed- 
ing three  years.  "In  comparing  these  two  definitions  with  each  other, 
we  arrive  at  a  pretty  satisfactory  conclusion  that  the  legislature  under- 
stood the  words  ^ands,  tenements  and  hereditaments'  as  excluding 
terms  for  years  in  land."  The  legislature  was  dealing  with  words  of 
art,  and  is  presumed  to  have  used  them  in  their  technical  sense.  The 
word  lands  always  refers  to  something  corporeal,  and  a  term  for  years 
is  not  in  law  a  tenement  or  a  hereditament.^'*^ 

A  statute  of  like  import  exists  in  Wisconsin  which  was  modeled 
after  the  New  York  act.^*®  However,  the  legislature  has  provided  that 
"the  term  'conveyance'  as  used  in  this  chapter  shall  be  construed  to 
embrace  every  instrument  in  writing  by  which  any  estate  or  interest  in 
real  estate  is  created,  aliened,  mortgaged  or  assigned,  or  by  which  the 
title  to  any  real  estate  may  be  affected  in  law  or  equity,  except  wills 
and  leases  for  a  term  not  exceeding  three  years."^*^  Considering  these 
statutes,  there  is  no  ambiguity.  The  words  and  the  intent  of  the  legis- 
lature are  clear  to  the  effect  that  no  covenant  shall  be  implied  in  any 
conveyance  of  real  estate,  and  that  a  lease  for  more  than  three  years  is 

^*^Rev.  St.,  p.  3052.  hereditaments,    and    as    embracing 

'"Burr  V.  Stenton,  43  N.  Y.  462;  all   chattels   real,  except  leases   for 

Tone   V.    Brace,    11    Paige    (N.    Y.)  a  term  not  exceeding  three  years,' 

566;  Vernam  v.  Smith,  15  N.  Y.  327.  and  such  would  be  the  legal  import 

A   contrary   doctrine   was    followed  of  the  terms,  I  apprehend,  without 

in   the    earlier    case    of    Kinney   v.  any   legislative    declaration    on   the 

Watts,    14    Wend.    (N.    Y.)    38.      It  subject.    .    .    .    The     lease    ...    is 

was  there  said   "That  a  lease  like  a  conveyance  of  real  estate." 

this  for  ten  years  is  a  conveyance  ^"  Mayor  &c.   v.   Mabie,   13   N.   Y. 

of  real  estate  is  shown  conclusively  151;    1.  Co.  Litt.,  by  Thomas,  219; 

by  the  definition  of  those  terms  in  Boreel  v.  Lawton,  90  N.  Y.  293.     In 

a   subsequent    part   of    the    revised  Coffin  v.  City  of  Brooklyn,  116  N.  Y. 

statutes.     In  1  R.  S.  762,  §  36,  it  is  159,  22  N.  E.  227,  however,  it  was 

declared    'That  the   term   "real   es-  said  that  no  covenant  would  be  im- 

tate"  as  used  in  this  chapter  shall  plied  if  a  lease  was  for  100  years, 

be     construed     as     co-extensive     in  ="  Stat.    1898,   §   2204. 

meaning  with  lands,  tenements,  and  =**Stat.  1898,  §  2242. 


§§  352,  352a]  covexaxts  ix  leases.  376 

such  a  conveyance.  The  court  held,  therefore,  that  in  a  lease  for  more 
than  three  years  there  was  no  implied  covenant  to  defend  from  inter- 
ruption of  the  use  by  the  acts  of  the  lessor  upon  adjoining  premises.^^** 

§  352.  The  legal  implication  of  the  covenant  for  quiet  enjoyment 
is  that  the  landlord  has  an  adequate  title  to  the  estate  created  by  the 
lease,  and  that  he  will  permit  the  tenant  to  enjoy,  without  disturb- 
ance or  interruption,  the  interest,  title  or  privilege  demised,  subject 
to  all  such  rights  as  are  expressly  or  by  natural  implication  reserved 
to  the  lessor.^^^  Such  a  covenant  in  a  lease  for  years,  being  one  in 
fiituro,  runs  with  the  land,  and  will  pass  with  it  to  any  person  who,  as 
assignee  in  law,  becomes  legally  possessed  of  the  term.^^^  On  the  other 
hand,  the  burden  of  the  covenant  passes  to  the  transferee  of  the  rever- 
sion, and,  therefore,  an  assignee  of  a  term  is  liable  to  a  tenant,  who 
sublet  from  the  original  lessee,  on  a  covenant  for  quiet  enjoyment 
after  the  sub-tenant  has  attorned  to  the  assignee.^^^ 

Although  the  words  "grant  and  demise"  will  in  a  lease  create  an 
implied  covenant  against  the  lessor,  yet  it  is  nowhere  considered  that 
the  same  words  will  create  an  implied  covenant  against  the  assignor  of 
a  lease.  And  so  the  assignor  is  not  liable  to  the  assignee  for  the  breach 
of  the  covenants  by  the  original  lessor.^^*  This  view  of  the  question 
■  was  taken  by  the  Massachusetts  court,  which  says  that  it  "can  find  no 
case  of  an  action  by  an  assignee  against  an  assignor  upon  a  covenant 
in  law  for  an  eviction  in  consequence  of  an  act  done  by  the  original 
lessor."255 

§  352a.  On  the  lease  of  the  surplus  water  in  a  canal,  the  covenant 
for  quiet  enjoyment  which  the  law  annexed  to  the  lease  was  that  so  long 
as  the  canal  was  used  for  purposes  of  navigation  and  while  there  was  a 
surplus  of  water,  the  lessors  agreed  that  they  would  do  no  acts  to  inter- 
rupt or  deprive  the  lessee  of  its  enjoyment.  On  the  abandonment  of 
the  canal  for  navigation,  the  lessors  were  under  no  obligation  to  con- 
tinue to  keep  it  in  repair. ^^*^ 

='"  Koeber  v.  Somers,  108  Wis.  497,         ^=  Shelton    v.    Codman,    3    Cush. 

84  N.  W.   991.     A  contrary  dictum  (Mass.)  318,  §  330. 
in  the  case  of  Shaft  v.  Carey,  107         ==^  Coulter    v.    Norton,    100    Mich. 

Wis.    273,    83    N.    W.    288,    was    ex-  389,  59  N.  W.  163. 
pressly  withdrawn.  ^*  Blair  v.  Rankin,  11  Mo.  440. 

-"Hoagland  v.  New  York  &c.  R.         ='=  Waldo  v.  Hall,  14  Mass.  486. 
Co.,  Ill  Ind.  443,  12  N.  E.  83.  ="' Hoagland  v.   New  York  &c.  R. 

Co.,  Ill  Ind.  443,  12  N.  E.  83. 


377  I'OR    QUIET    EXJOTMEXT.  [§    353 

§  353.  It  is  sufficient  in  many  cases  that  a  lease  contains  an  im- 
plied covenant  which  is  a  good  warranty  by  the  landlord  against  his 
own  acts;  and  it  is  then  unnecessary  to  consider  whether  a  covenant 
could  be  implied  amounting  to  a  warranty  against  incumbrances  or  a 
paramount  title,  or  against  any  rightful  claims  of  third  persons. 
Every  grant  carries  with  it  an  implied  undertaking,  on  the  part  of  the 
grantor,  that  so  far  as  he  is  concerned  he  will  do  not  act  to  interrupt 
the  free  and  peaceful  enjoyment  of  the  thing  granted.-^''  Thus,  every 
lease  carries  with  it  the  implication  that  the  lessor  shall  not  proceed 
to  impair  the  character  and  value  of  the  leased  premises.  Conse- 
quently, where  rooms  in  a  building  were  leased,  the  lessor  could  not 
make  alterations  which  would  affect  the  value  of  the  rooms  by  shutting 
them  off  from  the  street.  By  the  alterations  the  subject  of  the  lease 
was  so  materially  changed  that  the  rooms  no  longer  answered  to  the 
description  of  them  in  the  lease,  regard  being  paid  to  the  conditions 
and  situation  of  the  premises.  Alterations  of  such  character  would  be 
inconsistent  with  the  rights  of  a  lessee  under  a  lease,  and  constitute  a 
breach  of  the  implied  covenants  in  the  lease.^^^  An  implied  covenant 
of  this  nature  only  applies  to  conditions  in  existence  at  the  time  of 
the  leasing ;  as  a  general  rule  it  does  not  extend  to  things  not  in  esse 
at  the  time  of  the  demise.^^^  However,  it  would  apply  where  the  leased 
building  was  adapted  to  the  needs  of  the  tenant  at  the  time  of  hiring, 
and  the  landlord  knew  it  was  hired  for  a  particular  business.  If  in- 
juries, caused  by  the  acts  of  the  landlord,  rendered  the  building  useless 
for  this  purpose,  the  tenant  would  be  deprived  of  the  beneficial  use  of 
the  building,  and  there  would  be  a  breach  of  the  landlord's  implied 
undertaking.^^"  Furthermore,  the  landlord  cannot  interrupt  the  ten- 
ant's enjoyment  either  directly  or  indirectly,  as  by  using  an  adjoining 
field  for  such  purpose  as  to  defeat  the  object  for  which  the  premises 
were  leased.^^^  Entering  upon  demised  premises  and  digging  up  the 
soil  under  a  building  so  as  to  render  it  permanently  unsafe  and  unfit 
for  occupancy,  in  consequence  of  which  the  tenants  were  unable  to 
occupy  it  and  abandoned  it,  constitutes  an  eviction.^*^^ 

="  Dexter     v.     Manley,     4     Cush.  432,   79   N.   W.   636;    Young  v.   Col- 

(Mass.)    14.  lett,    63   Mich.    331,   29    N.   W.    850; 

=='  Brande  v.  Grace,  154  Mass.  210,  Pridgeon  v.  Boat  Club,  66  Mich.  326, 

31  N.  E.  633;  Salisbury  v.  Andrews,  33  N.  W.  502. 

128  Mass.  336.  "'"  Henly     v.      Neal,      2      Humph. 

^^  Shaft   v.   Carey,   107   Wis.   273,  (Tenn.)   551. 

277,  83  N.  W.  288,  per  Bardeen,  J.  ''■  Shally  v.  Shute,  132  Mass.  367. 

'^°  Adams    v,    Werner,    120    Mich. 


§■   354]  COVENANTS   IN   LEASES.  378 

§  354.  The  rule  as  to  the  breach  of  a  covenant  for  quiet  enjoy- 
ment is  that  there  can  be  no  breach  without  an  eviction  actual  or 
constructive.  What  acts  will  constitute  an  eviction,  it  is  often  diffi- 
cult to  determine,  but  it  is  settled,  however,  that  there  need  not  be  ac- 
tual dispossession  of  the  tenant  from  the  leased  premises.^®^  The  land- 
lord's acts,  though  not  amounting  to  a  physical  expulsion,  may,  never- 
theless, be  of  so  pronounced  and  offensive  a  character  as  to  create  a 
nuisance,  which  would  directly  affect  the  consideration  of  the  contract 
between  them.^^*  On  the  other  hand,  a  mere  trespass  by  the  landlord, 
without  any  intention  of  depriving  the  tenant  of  the  enjoyment  of  the 
premises,  will  not  constitute  an  eviction.-®^  In  1855  Chief  Justice 
Jervis,  speaking  for  the  Court  of  Common  Pleas,  said:  "It  is  ex- 
tremely difficult  at  the  present  day  to  define  with  technical  accuracy 
what  is  an  eviction.  Latterly  the  word  has  been  used  to  denote  that 
which  formerly  it  was  not  intended  to  Bxpress.  In  the  language  of 
pleading,  the  party  was  said  to  be  expelled,  amoved  and  put  out.  The 
word  'eviction'  came  from  'evincere,'  to  evict,  to  dispossess  by  a  judi- 
cial course,  and  was  formerly  used  to  denote  an  expulsion  by  the  asser- 
tion of  a  title  paramount  and  by  process  of  law.  But  this  sort  of  evic- 
tion is  not  necessary  to  constitute  a  suspension  of  the  rent ;  because  it 
is  now  well  settled  that  if  the  tenant  loses  the  benefit  of  the  enjoy- 
ment of  any  part  of  the  demised  premises  by  the  act  of  the  landlord, 
the  rent  is  thereby  suspended.  The  term  'eviction'  is  now  popularly 
applied  to  every  class  of  expulsion  or  amotion.  Getting  rid,  thus,  of 
the  old  notion  of  eviction,  I  think  it  may  now  be  taken  to  mean  this : 
not  mere  trespass  and  nothing  more,  but  something  of  a  grave  and 
permanent  character  done  by  the  landlord  with  the  intention  of  de- 
priving the  tenant  of  the  enjoyment  of  the  demised  premises."-*'*' 

2«'McAlester  v.  Landers,  70  Cal.  Tiley  v.  Moyers,  43  Pa.  St.  404;  Hay- 
79,  11  Pac.  505;  Royce  v.  Guggen-  ward  v.  Ramge,  33  Neb.  836,  51  N. 
heim,  106  Mass.  201;  Hayes  v.  Fer-  W.  229;  Elliott  v.  Aiken,  45  N.  H. 
guson,  15  Lea  (Tenn.)  1;  Whit-  30;  Hunt  v.  Cope,  Cowp.  242;  War- 
beck  V.  Cook,  15  Johns.  (N.  Y.)  483;  ren  v.  Wagner,  75  Ala.  188;  Lynch 
Levitzky  v.  Canning,  33  Cal.  299;  v.  Baldwin,  69  111.  210;  Lounsbery 
St.  John  V.  Palmer,  5  Hill  (N.  Y.)  v.  Snyder,  31  N.  Y.  514;  Mayor  &c. 
599;  Smith  v.  Raleigh,  3  Camp.  513;  v.  Mabie,  13  N.  Y.  151;  Meeker  v. 
Upton  V.  Townend,  17  C.  B.  30,  84  Spalsbury,  66  N.  J.  L.  60,  118  Atl. 
E.  C.  L.  30.  1026. 

""'  Sully  V.  Schmitt,  147  N.  Y.  248,  =""  Upton  v.  Townend,  17  C.  B.  30, 

41  N.  E.  514;   Edgerton  v.  Page,  20  84  E.  C.  L.  30,  quoted  with  approval 

N.    Y.    281;    Boreel    v.    Lawton,    90  in  Tunis  v.  Grandy,  22  Grat.   (Va.) 

N.   Y.    293;    Dyett   v.    Pendleton,    8  109,  130,  and  in  Hayner  v.   Smith, 

Cow.    (N.  Y.)    727.  63  111.  430. 

**McFadin  v.  Rippey,  8  Mo.  738; 


379  FOR  QUIET  ENJOYMEXT.  [§  355 

Acts  of  a  grave  and  permanent  character,  which  amount  to  a  clear 
indication  of  intention  on  the  lessor's  part  to  deprive  the  tenant  of  the 
enjoyment  of  the  demised  premises,  will  constitute  an  eviction.^*''^ 
There  must  be  an  actual  expulsion  of  the  tenant,  or  an  intentional 
disturbance  by  the  landlord,  which  so  seriously  disturbs  the  tenant's 
possession  as  to  compel  an  abandonment  of  the  demised  premises,  or 
which  deprives  the  tenant  of  the  beneficial  enjoyment  of  them,^®^ 

If  wrongful  acts  of  a  lessor  upon  the  demised  premises  are  such  as 
to  permanently  deprive  the  lessee  of  the  beneficial  enjoyment  of  them, 
and  the  lessee,  in  consequence  thereof,  abandons  the  premises,  it  is  an 
eviction;  and  the  intent  to  evict  is  conclusively  presumed.' ^^ 

§  355.  The  question  of  eviction  or  no  eviction  depends  upon  the 
circumstances,  and  is  in  all  cases  to  be  decided  by  the  jury.-^''    The 

erection  of  a  fence  barring  a  tenant's  access  to  premises  does  not,  as 
a  matter  of  law,  amount  to  an  eviction  if  the  tenant  continues  to  use 
and  occupy  them.^'^^  And  so  fencing  off  a  portion  of  the  demised 
premises  for  a  short  time  by  mistake  does  not  relieve  the  lessee  from 
liability  for  rent.-^^ 

Where  a  room  and  power  were  let  together  in  one  contract,  the  room 
might  be  so  situated  with  reference  to  the  source  of  the  power  and  so 
connected  with  it,  that  a  right  to  have  the  power  could  be  treated  as 
a  part  of  the  premises  let.  To  cut  off  the  power  would  be  a  breach  of 
the  lessor's  implied  contract  for  quiet  enjoyment,  and  an  eviction 
from  an  important  part  of  the  premises  let,  which  would  entitle  the 
lessee  to  recover  such  damages  as  they  had  suffered.  ^^^  A  building 
was  let  to  be  used  as  a  distillery  and  the  United  States  revenue  law 
required  the  written  consent  of  the  owner  of  the  premises  before  the}' 
could  be  used  for  such  purpose.  The  parties  did  not  intend  that  the 
lessee  should  make  use  of  the  distillery  in  violation  of  law.     There- 

="  Meeker  v.  Spalsbury,  66  N.  J.  L.  Lynch  v.  Baldwin,  69  111.  210;   Pat- 

60,  48  Atl.  1026;  Keating  v.  Spring-  terson   v.   Graham,   140   111.   531,   30 

er,  146  111.  481,  34  N.  E.  805;    Bar-  N.   E.    460;    Upton   v.   Townend,   17 

rett  v.  Boddie,  158  111.  479,  42  N.  E.  C.  B.  30,  84  E.  C.  L.  30;   Collins  v. 

143;  Kistler  v.  Wilson,  77  111.  App.  Karatopsky,  36  Ark.  316;   Young  v. 

149;    Anderson  v.  Winton,  136  Ala.  Burhaus,  80  Wis.  438,  50  N.  W.  343; 

422,  34  So.  962.  Sully  v.  Schmitt,  147  N.  Y.  248,  41 

=^  Hyman   v.   Jockey   Club   W.   L.  N.  E.  514. 

&  C.  Co.,  9  Colo.  App.  299,  48  Pac.  ="  Boston  &c.  R.  Corp.  v.  Ripley, 

671.  13  Allen    (Mass.)    421. 

^«°Skally  V.  Shute,  132  Mass.  367;  "-"  Mirick  v.  Hoppin,  118  Mass.  582. 

Sherman  v.  Williams,  113  Mass.  481.  ™  Brown  v.  Holyoke  &c.  Co.,  152 

^'^Hayner   v.   Smith,   63    111.   430;  Mass.  463,  25  N.  E.  966. 


§  356]  COVEXAXTS  IN  LEASES.  380 

fore  the  obligation  of  the  lessors  to  give  their  consent  as  demanded  by 
law  could  be  implied  as  a  necessary  incident  to  the  lease,  as  fully  as 
if  there  had  been  a  positive  stipulation  to  that  effect.  They  were 
as  much  bound  to  give  their  written  consent,  as  to  allow  the  tenant  to 
take  possession  of  the  distillery  and  premises  which  was  an  implied 
covenant  affecting  the  lease.^''* 

Any  default  as  well  as  any  overt  act  of  the  lessor  that  renders 
the  tenement  dangerous  to  the  life  or  health  of  the  tenant  may  be 
treated  by  the  lessee  as  an  eviction.  Thus,  evidence  of  the  lessor's 
neglect  to  drain  the  cellar  was  admissible.^^^  Where  there  is  a  failure 
in  an  admitted  undertaking  by  a  landlord  in  regard  to  the  condition 
of  leased  premises,  the  failure  to  put  them  in  proper  shape  within  a 
reasonable  time  after  receiving  notice  of  the  defect  will  justify  the 
tenant  in  leaving  the  premises  and  refusing  to  pay  any  more  rent.^^^ 
Wliether  the  consequences  flowing  from  the  breach  of  the  lessor's 
covenant  to  repair  are  serious  enough  to  justify  the  lessee  in  aban- 
doning the  premises  on  the  ground  that  there  has  been  a  constructive 
eviction  is  also  for  the  jury  to  determine.^^'  The  tenant  is  not  dis- 
charged from  liability  for  rent  because  of  non-repair  amounting  to  a 
constructive  eviction,  when  he  elects  to  continue  in  possession.^ ^®  And 
a  breach  of  a  covenant  to  perform  special  services,  such  as  furnishing 
heat  and  light  for  the  tenant,  would  not  amount  to  an  eviction.^^^ 

§  356.  An  eviction  may  be  actual,  as  where  there  is  a  physical 
expulsion,  or  it  may  be  constructive,  as  where,  though  amounting  to 
an  eviction  at  law,  the  tenant  is  not  deprived  of  actual  occupancy. 
Where  a  house,  in  which  there  were  leased  rooms,  was  moved  to  ad- 
joining land,  it  was  held  that  the  eviction  caused  thereby  was  not 
actual  but  constructive.  The  tenant  had  no  interest  in  the  land;  he 
had  a  mere  easement  for  support,  and  interference  with  an  easement 
is  not  an  actual  physical  eviction.^^^  A  tenant  cannot  retain  the  pos- 
session of  the  leased  premises  and  refuse  the  payment  of  rent  on  the 
ground  of  a  mere  constructive  eviction.  Such  an  eviction  may  justify 
an  abandonment  of  the  premises,  but,  unless  there  is  an  actual  aban- 

"*  Grabenhorst   v.    Nicodemus,    42  ="  Talbott  v.  English,  156  Ind.  299, 

Md.  236.  59  N.  E.  857;   Keating  v.  Springer, 

*"  Alger  V.  Kennedy,  49  Vt.  109.  146  111.  481,  34  N.  E.  805. 

"« Young  V.  Collett,  63  Mich.  331,  ""Bean   v.    Fitzpatrick,    67    N.    H. 

29  N.  W.  850.  225,  38  Atl.  722. 

="  Young  V.  Burhaus,  80  Wis.  438,  =^»Lieferman  v.  Osten,  167  111.  93, 

50  N.  W.  343;  Barrett  v.  Boddie,  158  47  N.  E.  203,  affirming  64  111.  App. 

111.  479,  42  N.  E.  143.  578. 


381  FOR    QUIET    EXJOYMEXT.  [§    356 

donment,  it  will  not  defeat  an  action  for  rent.^^^  If  the  tenant  fails 
to  act  within  a  reasonable  time  he  waives  his  right  to  abandon,^^- 
There  can  be  no  defense  as  for  a  constructive  eviction,  except  there  is 
an  actual  abandonment  of  the  building  or  a  portion  of  it  by  the  ten- 
ant on  that  account.  The  acts  of  the  landlord  must  be  such  as  to 
warrant  an  abandonment,  and  there  must  be,  in  fact,  an  abandonment 
of  the  premises,  or  of  the  portion  complained  of.^^^  But  the  mere 
retention  of  keys  by  a  tenant  who  claims  to  have  been  evicted  does  not 
amount  to  a  constructive  possession  by  him.^®*  By  paying  rent  subse- 
quently to  the  time  an  annoyance  on  the  leased  premises  amounting 
to  a  constructive  eviction  exists,  a  tenant  waives  his  right  to  abandon 
premises  for  that  cause.^®^  In  fact,  a  constructive  eviction  may  be 
waived  by  the  tenant's  mere  continuance  in  possession,  and  liability 
for  rent  under  the  lease  continues  as  long  as  the  tenant  remains  in 
possession.^^^ 

"WHiere  one  room  in  an  apartment  house  was  rented  and  was  in  the 
exclusive  possession  of  the  tenant,  it  was  held  to  constitute  an  evic- 
tion to  have  a  strong  odor  of  coal  gas  come  from  an  upper  tenement, 
and  smoke  from  a  lower  one  and  to  have  explosions  in  a  water  tank  on 
the  roof  which  cracked  the  walls  so  that  the  building  was  declared  un-i 
safe  by  the  city  inspectors ;  the  landlord  was  under  no  covenant  to  re> 
pair  and  it  is  to  be  observed  that  tenant  continued  to  occupy  the' 
building.  Still  the  majority  of  the  court  thought  there  was  an  evic' 
tion,  suspending  the  lessee's  liability  for  rent.  They  reason  that  "i:^ 
the  explosions  proceeded  from  the  water  tank  and  .  .  .  produced 
the  result  stated,  it  was  clearly  a  nuisance,  and  it  was  the  lessor's  nuty 
to  abate  it  and  remove  the  cause  of  the  trouble.  The  tank  was  a  part 
of  the  building,  designed  and  intended  in  its  use  for  the  accommoda- 
tion of  the  tenants.  If  the  noises  and  explosions  proceeded  from  it, 
the  nuisance  was  of  plaintiff's  own  creation."-*^ 

*"  Patterson   v,    Graham,    140    111.  Keating   v.    Springer,    14o   ill.    481, 

531,  30  N.  E.  460;   Humphreville  v.  34  N.  E.  805;  Barrett  v.  Boddie,  158 

Billinger,  62  111.  App.   125;    Talbott  111.  479,  42  N.  E.  143. 

V.   English,   156    Ind.   299,   59  N.   E.  ^*  Harmony  Co.  v.  Ranch,  64   111. 

857;  Leiferman  v.  Osten,  167  111.  93,  App.  386. 

47  N.  E.  203,  affirming  64  111.  App.  =^  Orcutt    v.    Isham,    70    111.    App. 

578.  102. 

^^Crommelin    v.    Thiess,    31    Ala.  ^"Barrett  v.  Bodaie,  158   111.  479, 

412;    Beecher  v.   Duffield,   97   Mich.  42  N.  E.  143;   Klstler  v.  Wilson,  77 

423,  56  N.  W.  777.  111.  App.  149. 

^''Witte    V.    Quinn,    38    Mo.    App.  ="' Tallman  v.   Murphy,  120  N.   Y. 

681;   Kistler  v.  Wilson,  77  111.  App.  345,  24  N.  E.   716.     Strong  dissent- 

149;  Edgerton  v.  Page,  20  N.  Y.  281;  ing   opinion   by   Vann   J.    A   weak 


§  357]  COVENANTS  IN  LEASES.  382 

The  inability  of  a  lessee  to  obtain  a  renewal  of  bis  liquor  license  on 
the  leased  premises  is  not  an  eviction.  To  constitute  an  eviction  which 
will  operate  either  to  annul  a  lease  or  to  suspend  the  rent  some  act 
must  have  been  done  by  the  landlord  or  by  his  procurement  with  the 
intention  and  efEect  of  depriving  the  lessee  of  the  use  and  enjoyment 
of  the  demised  premises  in  whole  or  in  part.^^^  So  it  has  been  held 
that  even  though  the  lessor  influence  the  public  authorities  to  take 
away  the  tenant's  liquor  license,  such  action  does  not  constitute  an 
eviction  by  the  lessor.-®^  Consequently  a  vote  for  no  license,  even  if 
it  had  a  direct  bearing  on  the  passage  of  a  no  license  law,  would  not 
amount  to  an  eviction  justifying  an  abandonment  of  a  leased  hotel 
by  the  lessee.^^" 

§  357.  Physical  expulsion. — Where,  by  the  procurement  of  the 
lessor,  the  lessee  was  excluded  from  access  to  the  leased  room  with 
the  effect  of  depriving  him  of  the  use  of  it  and  the  lessee  yielded  to 
such  exclusion  and  abandoned  the  occupation  of  such  room,  such  ex- 
clusion in  law  would  amount  to  an  eviction.^^^  Excavations  upon  a 
lot  owned  by  the  landlord  adjoining  the  leased  premises  for  the  pur- 
pose of  laying  a  new  party  wall  may  amount  to  a  breach  of  a  cove- 
nant for  quiet  enjoyment.^®^  But  it  was  held  that  the  owner  of  two 
adjoining  houses  who  had  let  one  and  tore  down  the  other  was  not  re- 
sponsible to  the  tenant  for  exposing  his  premises  by  tearing  away  the 
entire  wall  when  such  acts  were  not  done  negligently.^^^ 

A  covenant  for  quiet  enjoyment  is  broken  by  tearing  down  a  de- 
mised building,  which  has  been  condemned  by  the  authorities,  rather 
than  remedying  the  defect  by  making  repairs.  The  covenant  bound 
the  lessors  not  to  do  any  unnecessary  thing  to  disturb  the  possession 
of  the  lessee.  If  it  was  necessary  to  take  down  the  building  for  rea- 
sons of  safety  then  it  might  be  taken  down.  But  if  the  building 
could  be  made  safe  and  secure  without  taking  it  down,  the  lessors 
would  violate  the  lessee's  rights  by  taking  it  down.     The  right  of 

point  in  majority  opinion  was  that  ""  Grove  v.  Youell,  110  Mich.  285, 

landlord  was  not  connected  with  the  68  N.  W.  132;    Pendill  v.  Eells,  67 

disturbing  circumstances.  Mich.  657,  35  N.  W.  754;   Levitzky 

=^  Miller  v.  Maguire,  18  R.  I.  770,  v.  Canning,  33  Cal.  299;   Briggs  v. 

30  Atl.  966.  Thompson,  9  Pa.  St.  338. 

^^  International      Trust      Co.      v.  ^=  Collins  v.   Lewis,  53   Minn.   78, 

Schumann,  158  Mass.  282,  33  N.  E.  54   N.   W.   1056.      See   Trust   Co.   v. 

509.  Palmer,  171  111.  383,  49  N.  E.  553. 

^^Barghman  v.   Portman,  12  Ky.  =«' Rotter  v.  Goerlitz,  16  Daly   (N. 

L.  R.  342.  Y.)   484. 


J 


383  FOR    QUIET    EXJOYMENT.  [§    358 

election  as  to  the  mode  of  obeying  the  requirement  of  the  statute,  was 
limited  by  the  covenant  in  the  lease.^^* 

Taking  possession  of  furniture  in  a  leased  hotel  by  the  landlord 
under  a  chattel  mortgage  to  secure  rent  is  not  an  eviction.  Such  inter- 
ference by  him  does  not  clearly  indicate  an  intention  on  his  part  that 
the  tenant  shall  no  longer  continue  to  hold  the  premises. ^^^  Under  an 
attachment  for  rent  wrongfully  obtained,  a  lessor  sold  all  of  his  ten- 
ant's personal  property  in  a  rented  hotel  so  that  he  was  disabled  from 
continuing  in  business.  Nevertheless,  the  tenant  could  not  elect  to 
treat  this  as  an  eviction,  because  to  constitute  an  eviction,  the  acts  of 
the  landlord  must  relate  to  the  premises  themselves,  making  them 
unfit  for  occupancy.  A  personal  assault  on  a  tenant  rendering  him  un- 
able to  continue  business  would  not  be  an  eviction.^®® 

§  358.  Entry  by  landlord  under  claim  of  privilege. — A  landlord 
may  by  contract  lawfully  restrict  his  tenants'  use  of  the  property  and 
if  a  trespass  is  committed  in  preventing  their  use  for  a  purpose  pro- 
hibited by  the  lease,  such  trespass  does  not  constitute  an  eviction.^^^ 
Interruption  by  a  landlord  of  his  tenants'  occupation,  without  evict- 
ing him  does  not  suspend  the  rent,  either  in  whole  or  in  part.^''^  But 
it  has  been  held  that  a  landlord  would  be  liable  to  his  tenant  for  an 
interruption  of  his  possession,  even  though  the  landlord  entered  to 
repair  an  unsafe  wall.^^^  When  the  parties  to  a  lease  contemplate 
changes  in  the  leased  premises  and  bind  the  lessor  to  make  them  on  a 
certain  contingency,  no  covenant  will  be  implied  against  an  interrup- 
tion of  the  lessees'  enjoyment  caused  by  the  making  of  the  proposed 
alterations.  As  long  as  the  lessor  is  not  at  fault  in  performing  his 
undertaking,  he  will  not  be  liable  because  the  interruption  of  the  les- 
see's enjoyment  continues  for  a  longer  period  than  was  anticipated. ^^"^ 
When  the  consent  to  occupy  a  space  adjacent  to  leased  premises  is  a 
mere  license  to  do  so,  an  express  covenant  for  quiet  and  peaceable 
possession  cannot  be  regarded  as  having  application  to  that  clause. 
In  determining  what  was  a  mere  license,  the  power  and  authority  of 
the  lessor  is  entitled  to  weight;  as  where  sidewalk  space  could  not  be 

=**  Kansas  Inv.  Co.  v.  Carter,  160  *«  Fuller      v.      Ruby,      10      Gray 

Mass.  421,  36  N.  E.  63.  (Mass.)    285. 

"=  Morris  v.  Tillson,  81  111.  607.  =^°  Goebel  v.  Hough,  26  Minn.  252, 

"« Marchand  v.  York,  10  Ky.  L.  R.  2  N.  W.  847. 

812.  =°°  McCormick  v.  Milburn  &  Stod- 

'^  Hayward  v.  Ramge,  33  Neb.  836,  dard  Co.,  57  Minn.  6,  58  N.  W.  600. 
51  N.  W.  229. 


§  359]  COVENANTS  IN  LEASES.  38-^ 

leased  without  the  consent  of  city  authorities.^"^  Where  leased  prem- 
ises were  partially  destroyed  by  fire,  and  the  landlord,  with  the  ap- 
parent  consent  of  the  tenant,  enters  and  repairs  them,  this  is  not  aa 
eviction  even  though  the  tenant  is  obliged  to  remove  his  effects  from 
the  house,  and  the  tenant  is  not  justified  in  abandoning  the  premises 
but  will  still  be  liable  for  rent.^"^ 

In  a  case  where  a  vein  of  coal  was  leased,  it  was  held  not  to  be  an. 
eviction  for  the  lessor  to  mine  coal  from  another  part  of  the  vein,  as 
long  as  he  interfered  in  no  way  with  the  operations  carried  on  by  the 
lessee.^"* 

It  has  been  laid  down  that,  as  a  general  rule,  the  bringing  of  an 
action  for  possession  of  the  demised  premises  operates  as  an  entry 
and  a  final  election  by  the  lessor  to  terminate  the  tenancy.  Although 
there  has  been  no  judgment  in  the  ejectment  suit,  the  lessor  cannot 
afterwards  maintain  an  action  for  rent  due  or  covenants  broken.^*^* 
But  this  result  does  not  follow  if  the  ejectment  suit  was  not  well 
founded,  and  was  subsequently  dismissed  and  the  lessee  has  remained 
in  continuous  enjoyment  of  the  demised  premises.^"^  So  it  was  held 
that  a  right  of  action  for  breach  of  a  covenant  of  quiet  enjoyment  did 
not  accrue  at  the  time  a  petition  was  filed  but  only  after  an  injunction 
had  issued  against  the  continued  occupation  of  the  premises  by  the 
lessee.^"®  A  formal  entry  by  a  landlord,  followed  by  an  action  of 
ejectment  which  the  tenant  successfully  defends,  would  not  be  an  evic- 
tion, provided  the  tenant  remained  in  occupation  till  the  end  of  the 
term.3" 

§  359.  Interference  with  light  and  air. — Although  it  is  settled 
that  actual  physical  expulsion  is  not  necessary  to  constitute  an  evic- 
tion, the  American  doctrine  that  easements  for  light  and  air  can  only 
be  created  by  express  grant=^°*  produces  the  result  that  interference 
with  such  rights  by  the  landlord  is  not  an  eviction.^*^^   The  mere  fact 

5"^  Brown    v.    Schiappacasse,    115  '"Madox  v.   Humphries,   24   Tex. 

Mich.   47,  72   N.  W.   1096.  195. 

^"^  Humiston    v.    Wheeler,    70    111.  ""  International      Trust      Co.      v. 

App.  349.  Shumann,  158  Mass.  287,  33  N.  E. 

""^Tiley  V.  Moyers,  43  Pa.  St.  404.  509. 

^»*  Jennings  v.  Bond,  14  Ind.  App.  =°^  Collier     v.      Pierce,      7      Gray 

282;    Cones  v.  Carter,   15   M.  &  W.  (Mass.)    18;    Rogers    v.    Sawin,    10 

718.  Gray  (Mass.)   376. 

^=Agar  V.  Winslow,  123  Cal.  587,  ^"^  Witte    v.    Quinn,    38    Mo.    App. 

56  Pac.  422;   Madgx  v.  Humphries,  681. 
24  Tex.  195. 


385  FOR    QUIET    ENJOYMENT.  [§    360 

of  the  erection  of  a  building  by  a  landlord  on  his  adjoining  land,  so 
as  to  obstruct  and  darken  the  tenant's  windows,  is  not  an  eviction.^^*' 
Still,  if  the  building  was  erected  upon  part  of  the  curtilage  included 
in  the  lease,  closing  the  windows  so  as  to  make  a  part  of  it  uninhab- 
itable, the  lessee  could  certainly  treat  this  as  an  eviction,  because  it 
would  be  the  erection  of  a  permanent  structure  on  part  of  the  demised 
premises,  materially  changing  the  character  and  beneficial  enjoyment 
thereof.  In  such  a  case  the  landlord  would  be  responsible  for  the  effect 
of  his  wrongful  act,  without  further  proof  of  unlawful  intent.^^^ 
Furthermore,  this  would  take  effect  as  an  actual  physical  ouster  from 
a  portion  of  the  premises,  so  that  the  lessee  could  continue  to  occupy 
the  balance  of  the  premises  and  yet  claim  to  be  evicted.  The  only 
question  is  whether  the  yard  or  place  upon  which  the  lessor  enters  and 
erects  his  structure  is  a  part  of  the  demised  premises.  It  is  error  to 
exclude  evidence  throwing  light  on  this  question.^^^  ^j^g  erection  of  a 
party  wall  by  an  adjoining  owner,  by  which  windows  in  a  leased  build- 
ing are  closed  up,  is  not  an  eviction  by  the  lessor,  nor  any  defense  to 
the  payment  of  rent  under  the  lease,  even  though  the  lessor  knew  of 
the  intention  of  the  adjoining  owner  to  build  at  the  time  of  entering 
into  the  lease  and  concealed  it  from  the  lessees.^^^ 

The  fact  that  the  owner  of  leased  premises  consents  to  the  erection 
of  an  elevated  railroad  along  the  street  in  front  of  the  same,  and  that 
the  operation  of  such  railroad  seriously  discommodes  the  tenant  and 
interferes  with  the  transaction  of  his  business,  does  not  constitute  such 
an  eviction  as  will  justify  the  tenant  in  abandoning  the  premises.^^* 

§  360.  Eviction  by  nuisance  on  adjoining  premises. — From  the 
doctrine  that  a  landlord  is  not  responsible  for  the  acts  of  strangers, 
it  would  follow  that  an  act  done  by  one  tenant  in  a  tenement  house, 
without  the  authority,  consent,  or  connivance  of  the  landlord,  cannot 
be  treated  as  an  eviction  by  other  tenants. ^^^     In  an  early  case  in 

^"Palmer    v.   Wetmore,    2    Sandf.  114.    Or  the  lease   may  take   effect 

(N.  Y.)   316;   Myers  v.  Gemmel,  10  as  a  grant  of  an  easement  for  light 

Barb.  (N.  Y.)  537.    See  also,  Eager-  and  air,   which  is  supplied   by   the 

ton  v.   Paige,  1   Hilt.    (N.   Y.)    320,  open  space  above  the  yard.     Doyle 

20  N.  Y.  281,  §  381.  V.  Lord,  64  N.  Y.  432. 

'"Boyce      v.      Guggenheim,      106  ="  Hazlett    v.    Powell,    30    Pa.    St. 

Mass.  201.  293. 

=i-Witte   V.    Quinn,    38    Mo.    App.  '"Kistler  v.  Wilson,   77  111.  App. 

681.     Back  yards  and  passage-ways  149. 

will  usually  pass  as  appurtenances  '"  Conrad   Seipp  &c.   Co.  v.  Hart, 

to   a  lease   of   the   principal   build-  62   111.  App.  212. 
Ing.     Oliver  v.  Dickinson,  100  Mass. 
Jones  L.  &  T.— 25 


§  360]  COVENANTS  IN  LEASES.  386 

New  York,  however,  the  principle  was  established  that  when  a  lessor 
creates  a  nuisance  in  the  vicinity  of  the  demised  premises,  or  was 
guilty  of  acts  which  precluded  the  tenant  from  the  beneficial  enjoy- 
ment of  the  premises,  in  consequence  of  which  the  lessee  abandoned 
the  premises,  such  act  is  deemed  a  virtual  expulsion  of  the  tenant 
and  equally  with  an  actual  expulsion  bars  the  recovery  of  rent.  The 
reason  of  the  rule  is  that  the  tenant  has  been  deprived  of  the  enjoy- 
ment of  the  demised  premises  by  the  wrongful  act  of  the  landlord; 
and  thus  the  consideration  of  his  agreement  to  pay  the  rent  has 
failed.^^®  This  principle  has  also  received  the  support  and  approval 
of  the  courts  in  other  jurisdictions.^ ^'^  So  it  has  been  held  to  amount 
to  an  eviction  for  a  landlord  to  let  an  adjoining  tenement  to  lewd 
women  when  he  knew,  or  ought  to  have  known,  that  it  would  be  used 
for  purposes  of  prostitution,  and  to  take  no  steps  for  the  removal  of 
such  tenants  after  being  informed  that  their  conduct  was  so  boister- 
ous and  offensive  that  the  peace  and  quiet  of  the  tenant  was  destroyed,, 
and  the  building  made  disreputable  and  infamous.  Such  facts  would 
justify  the  tenant  in  abandoning  the  premises  and  relieve  him  from 
further  liability  for  rent.^^*  However,  where  a  tenant  had  continued 
in  occupation  during  the  disturbance,  he  could  not  set  up  the  annoy- 
ance of  improper  neighbors  as  a  defense  against  his  liability  to  pay 
rent.  If  there  is  no  actual  ouster  and  no  intention  on  the  part  of  the 
lessor  of  depriving  the  lessee  of  the  use  and  occupation  of  the  de- 
mised premises,  the  liability  to  pay  rent  will  continue.^^^ 

"•Dyett  V.  Pendleton,  8  Cow.  (N.  of  the  opinion:    "The  case  of  Dyett 

Y.)    727.     This   case  was   approved  v.   Pendleton,   8   Cow.    (N.   Y.)    727 

and   followed   in  Cohen  v.   Dupont,  .    .    .    was  decided  upon  a  very  dif- 

1   Sandf.   (N.  Y.)   260;   Edgerton  v.  ferent  state  of  facts,  and  contained 

Page,  20  N.  Y.  281;   Home  &c.  Ins.  many  elements,  necessary  to  consti- 

Co.  v.  Sherman,  46  N.  Y.  370;  Sully  tute  an  eviction,  which  are  wanting 

V.  Schmitt,  147  N.  Y.  248,  41  N.  E.  in  the  case  at  bar.     The  defendant 

514.  there,  under  a  lease  for  years,  had 

"' Leadbeater  v.  Roth,  25  111.  587;  been  in  more  than  a  year  when  the 

Jackson     v.     Eddy,     12     Mo.     209;  plaintiff,    who   occupied    an    adjoin- 

Dougherty  v.  Seymour,  16  Colo.  289,  ing  room  under  the  same  roof,  him- 

26  Pac.  823;  Lay  v.  Bennett,  4  Colo,  self    created    the    disturbances    and 

App.  252,  35  Pac.  748;   Rowbotham  nuisances    complained    of,    and    the 

V.  Pearce,  5  Houst.  (Del.)  135.  defendant    within    a    month    aban- 

^^  Dyett  V.  Pendleton,  8  Cow.   (N.  doned  his  tenement.     The  intent  to 

Y.)    727;    Lay   v.   Bennett,   4   Colo,  evict,     and     actual     abandonment, 

App.    252,    35    Pac.    748.      But    see  might  well  have  been  found,  but  to 

Townsend  v.  Gilsey,  1  Sweeny   (N.  hold    there    was    an    eviction    here, 

Y.)  155.  would  be  to  go  far  beyond  that  de- 

'**  De  Witt  v.  Pierson,  112   Mass.  cision." 
8.     Endicott  J.   said   in  the   course 


3S7  rOK  QUIET  ENJOYMENT.  [§'  361 

A  tenant  whose  enjoyment  and  use  of  the  premises  is  interfered 
with  by  the  landlord's  operating  boilers  below,  making  the  floors  and 
walls  uncomfortable  and  unhealthy,  may  recover  damages  for  breach 
of  covenant  of  quiet  enjoyment.  ^^^  But  oppressive  heat  coming  from 
a  boiler  room  would  not  be  a  breach  of  covenant  for  quiet  enjoyment, 
when  the  amount  of  artificial  heat  had  not  been  increased  since  the 
granting  of  the  lease.^^^ 

§  361.  Under  a  covenant  for  quiet  enjoyment,  the  lessor  does  not 
covenant  against  the  acts  of  wrong-doers;  and  to  constitute  a  breach 
of  this  covenant,  the  person  who  does  the  act  must  have  some  lawful 
interest  or  right  in  the  realty  whereby  the  tenant  is  evicted,  and  not 
merely  a  title  to  some  chattel  that  happens  to  be  upon  it.  A  general 
covenant  in  a  lease  for  quiet  enjoyment  extends  only  to  entries  and 
interruptions  by  those  who  have  lawful  title  but  not  by  wrong-doers; 
for  the  tenant  has  his  remedy  by  action  for  all  tortious  entries  and 
disturbances.^22  Hence,  it  may  be  stated  as  a  general  rule  that  a 
covenant  for  quiet  enjoyment  in  a  lease,  whether  express  or  implied, 
does  not  render  the  lessor  liable  for  the  tortious  acts  of  strangers  to  the 
title.223  r^^Q  ^g|.g  Qf  strangers,  claiming  under  no  title,  cannot  con- 
stitute a  technical  eviction  of  the  tenant.^^*  The  responsibility  of  the 
landlord  under  such  a  covenant  does  not  extend  to  indemnity  against 
injury  from  the  acts  of  a  mere  trespasser;  but  is  confined  to  acts  of 
those  claiming  under  the  lessor.^^s  Even  though  the  third  party  be  a 
grantee  from  the  landlord  of  a  part  or  of  the  whole  of  the  property, 
his  interference  with  the  tenant  is  not  a  violation  of  the  covenant  for 
quiet  enjoyment.^2^  But  if  the  landlord  authorizes  an  adjoining 
owner  to  do  acts  on  the  demised  premises,  as  to  excavate  for  a  party 
wall,  the  landlord  is  responsible  for  such  acts  which  would  constitute 
a  breach  of  his  covenant  for  quiet  enjoyment.^^^    It  is  the  right  and 

""  Boyer  V.  Commercial  Bldg.  Inv.  305;     Perry    v.    Wall,    68    Ga.    70; 

Co.,  110  Iowa  491,  81  N.  W.  720.  Hayes  v.  Bickerstaff,  Vaughan  118, 

'=' Chicago  Warehouse  Co.  v,   Illi-  2  Mod.  35. 

nois  &c.  Co.,  35  III.  App.  144.  ^-*  Meeks    v.    Bowerman,    1    Daly 

'"Kimball    v.    Grand    Lodge    &c.,  (N.  Y.)  99. 

131    Mass.    59;     Ellis    v.    Welch,    6  ^^'Baugher  v.  Wilkins,  16  Md.  35; 

Mass.    246;     Sigmund    v.     Howard  Sigmund  v.  Howard   Bank,  29  Md. 

Bank,  29  Md.  324;   Baugher  v.  Wil-  324. 

kins,  16  Md.  35;  Dudley  v.  Folliott,  ^^''Gazzolo  v.  Chambers,  73  111.  75; 

3  Term  R.  584.  Kelly  v.  Dutch  Church,  2  Hill   (N. 

'''Abrams  v.  Watson,  59  Ala.  524;  Y.)   105. 

Chestnut  v.  Tyson,  105  Ala.  149,  16  =-'  Collins  v.   Lewis,  53  Minn.  78, 

So.  723;  Branger  v.  Manciet,  30  Cal.  54  N.  W.  1056. 
624;  Underwood  v.  Birchard,  47  Vt. 


§■  362]  COVENAXTS  IN"  LEASES.  388 

duty  of  a  lessee  who,  in  contemplation  of  law,  is  in  possession  from 
the  moment  the  lease  takes  effect,  to  eject  a  trespasser,  and  not  the 
duty  of  the  lessor,  and  if  the  lessee  fails  to  do  so,  he  cannot  claim  an 
abatement  of  rent  by  reason  of  an  eviction.^^^  However,  it  is  no  de- 
fense to  a  tenant's  claim  that  his  rights  under  the  lease  hare  been 
invaded  and  infringed  upon,  to  say  that  the  invasion  and  infringe- 
ment were  the  acts  of  another  tenant,  when  they  have  been  performed 
with  the  landlord's  consent  and  active  concurrence.  ^^^  The  expres- 
sion that  a  tenant  can  only  excuse  himself  from  paying  rent  when 
evicted  by  a  paramount  title,  means  that  he  can  only  excuse  himself 
when  he  is  kept  out  of  possession  by  one  who  has  the  legal  right  to 
do  so,  and  not  a  mere  trespasser  against  whom  he  has  his  remedy.^^'^ 

Covenants  for  title  and  for  quiet  enjoyment  merely  exact  of  the 
lessor  that  he  shall  have  such  a  title  to  the  premises  at  the  time  as 
shall  enable  him  to  give  a  free  unincumbered  right  for  the  term  de- 
mised, and  there  is  no  express  or  implied  warranty  against  the  acts 
of  strangers;  hence,  if  the  lessee  be  ousted  by  one  who  has  no  title, 
the  law  leaves  him  to  his  remedy  against  the  wrong-doer.  It  will  not 
judge  that  the  lessor  covenanted  against  the  wrongful  acts  of  strangers 
unless  the  covenant  be  full  and  express  to  the  purpose.^^^ 

Before  a  lessee  can  recover  damages  for  a  disturbance  of  his  pos- 
session by  a  third  person,  he  must  give  personal  formal  notice  to  the 
lessor  and  call  him  in  warranty. ^^^ 

§  362.  A  taking  of  the  demised  premises  by  the  sovereign  under 
the  right  of  eminent  domain  is  not  an  eviction. ^^^     The  Supreme 

^-^  McNairy     v.     Hicks,     3     Baxt.  not   be    recovered   back    from    him. 

(Tenn.)  378.  Hoopes  v.  Meyer,  1  Nev.  433. 

"^City  Power  Co.  v.  Fergus  Falls  '^^  Gardner  v.  Keteltas,  3  Hill   (N. 

&c.  Co.,  55  Minn.  172,  56  N.  W.  685;  Y.)   330;   Dudley  v.  Folliott,  3  Term 

Twiss    V.    Baldwin,    9    Conn.    291;  584;   Hayes  v.  Bickerstaff,  Vaughan 

Clement   v.    Gould,    61    Vt.    573,    18  118. 

Atl.  453.  ="Fox  v.  McKee,  31  La.  Ann.  67; 

^^°  Hoopes   v.    Meyer,   1   Nev.    433.  Sheets  v.  Joyner,  11  Ind.  App.  205, 

Paramount   title.     Where   premises  38  N.  E.  830. 

owned  by  two  tenants  in  common  ^''  Frost  v.  Earnest,  4  Whart. 
were  leased  by  one  of  them  and  (Pa.)  86;  Ross  v.  Dysart,  33  Pa. 
the  other  got  hold  of  part  of  the  St.  452;  Schuylkill  &c.  R.  Co.  v. 
premises  and  kept  the  lessee  out,  Schmoele,  57  Pa.  St.  271;  Dyer  v. 
this  amounted  to  an  eviction  and  Wightman,  66  Pa.  St.  425;  Peck  v. 
the  tenant  would  be  pro  tanto  ex-  Jones,  70  Pa.  St.  83;  Ellis  v.  Welch, 
cused  from  paying  rent.  For  if  the  6  Mass.  246;  Parks  v.  City  of  Bos- 
other  tenant  in  common  got  posses-  ton,  15  Pick.  (Mass.)  198;  Emmes 
sion  without  fraud  or  force,  it  could  v.  Feeley,  132  Mass.  346;   Stubbings 


389  FOR   QUIET    ENJOYMENT.  [§    363 

Court  of  Ohio  said  in  an  early  case:  "Wliilst  there  are  a  few  cases, 
chiefly  in  Missouri  and  Louisiana,  which  hold  a  contrary  view,  the 
correct  doctrine,  both  on  principle  and  by  the  decided  weight  of  au- 
thority, seems  to  be  that  a  condemnation  of  a  part  of  a  leasehold  es- 
tate for  a  public  use  does  not  at  law  amount  to  an  eviction;  and 
whether  the  fee  or  a  mere  easement  be  taken,  the  tenant  still  remains 
liable  under  his  covenants  to  pay  the  rent  originally  reserved,  because 
nothing  short  of  a  surrender,  a  release  or  an  eviction  will  discharge 
him  from  his  covenant  in  this  behalf.  ...  A  condemnation  by 
eminent  domain  of  part  of  the  landlord's  reversion  is  not  in  law  an 
eviction  or  partial  eviction,  for  an  eviction  is  the  act  of  the  landlord 
or  of  a  third  person  holding  under  a  paramount  title.''^^*  A  tenant, 
as  the  owner  of  an  estate  for  years,  is  guaranteed  just  compensation 
before  his  title  can  be  divested  under  the  power  of  eminent  domain. 
He  takes  the  term  as  any  other  interest  in  land  is  taken,  subject  to  the 
exercise  of  that  power.  If  he  suifer  loss,  or  is  deprived  of  his  estate, 
he  is  provided  with  the  same  remedy  that  is  given  to  all  other  own- 
ers, and  holds  his  title  subject  to  this  right  the  same  as  his  landlord 
holds  his  title.^^^  A  covenant  for  quiet  enjoyment  is  designed  to  in-  ■ 
demnify  the  lessee  for  a  lawful  eviction  by  reason  of  defect  of  title 
in  the  lessor  and  any  disturbance  thereon.  In  case  of  a  taking  by 
eminent  domain  the  remedy  of  the  lessee  is  to  look  to  the  legislative 
provisions  made  for  his  indemnity,  and  not  to  the  covenant  for  quiet 
enjoyment,  which  was  introduced  into  conveyances  for  purposes  en- 
tirely dilierent.^^®  Considering  the  covenant  to  pay  rent  as  unaf- 
fected by  the  proceedings  of  the  state  to  appropriate  the  land,  it  is 
true  in  strictness  of  law  that  the  landlord  is  only  entitled  to  the  pres- 
ent value  of  his  reversion,  subject  to  the  term ;  and  that,  on  the  same 
principle,  the  tenant  remaining  personally  bound,  but  being  deprived 
of  the  use  of  the  premises,  is  entitled  not  merely  to  the  value  of  the 
term,  subject  to  a  rent,  but  to  a  sum  of  money  which  will  indemnify 
him  against  the  loss  arising  from  his  covenant  to  pay  in  futuroP'^ 

V.  Village  of  Evanston,  136  111.  37,  cuted   after   the   statute   conferring 

26  N.  E.  577,  11  L.  R.  A.  839;  Corri-  the  power  of  eminent  domain   had 

gan  v.  City  of  Chicago,  144  111.  537,  been   passed.     Frost   v.   Earnest,    4 

33  N.  E.  746,  21  L.  R.  A.  212;  Folts  Whart.  (Pa.)  86. 

v.  Huntley,   7  Wend.    (N.  Y.)    210;  ^'^i  Foote  v.  City  of  Cincinnati,  11 

Foote  V.  City  of  Cincinnati,  11  Ohio  Ohio  408. 

408;  Gluck  v.  Mayor,  etc.,  of  Balti-  ^^  Corrigan  v.  City  of  Chicago,  144 

more,  81  Md.  315,  32  Atl.  515.     See  111.  537,  33  N.  E.  746. 

§  680.    Ouster  by  power  of  eminent  ^^  Frost    v.     Earnest,     4     Whart. 

domain  is  not  an  eviction  of  a  ten-  (Pa.)   86. 

ant  even  though  the  lease  was  exe-  ^"  Foote  v.  City  of  Cincinnati,  11 


§    363]  COVENANTS    IN   LEASES.  390 

But  in  equity  this  sum  of  money  belongs  to  the  lessor  because  he 
would  be  deprived  of  all  recourse  to  the  land,  either  by  distress  or  re- 
entry, and  would  have  to  rely  on  the  personal  responsibility  of  the 
tenant.  The  consequence  of  awarding  such  damages  to  the  landlord 
is  to  release  the  tenant  from  his  obligation  to  pay  rent.  All  parties 
at  once  are  compensated  for  their  actual  loss.  The  damages  awarded 
take  the  place  of  the  land,  the  relation  of  landlord  and  tenant  is  ex- 
tinguished and  all  covenants  growing  out  of  that  relation  are  neces- 
sarily at  an  end.^^*  So  it  has  been  held  that  when  the  entire  premises 
included  in  the  demise  are  taken,  the  obligation  of  the  tenant  to  pay 
rent  ceases,  and  he  may  plead  the  termination  of  the  estate  as  his  de- 
fense. ^^'^  The  measure  of  the  lessee's  damages  is  the  value  of  the  term 
minus  the  rental  which  he  has  undertaken  to  pay.^*" 

In  Ehode  Island  it  is  provided  by  statute^*^  that,  in  case  only  part 
of  any  land  under  lease  is  taken  all  contracts  respecting  the  same 
should,  from  the  time  of  election,  cease  and  determine  and  be  abso- 
lutely discharged  as  to  the  part  taken  but  should  remain  valid  as  to 
the  residue,  and  the  rents  should  be  apportioned  for  such  residue. 
Under  this  act  it  was  held  that  no  eviction  by  a  city  or  attornment 
to  it  was  necessary  to  end  a  lessee's  liability  for  rent  which  ceased 
on  the  vesting  of  the  title  in  the  city.  The  lessor  could  not  sue  in 
use  or  occupation,  though  the  lessee  continued  in  occupation  of  the 
entire  estate.^*^ 

§  363.  An  outstanding  title  which  is  paramount  to  that  of  his 
landlord  is  no  defense  by  a  tenant  to  an  action  for  rent.  There  must 
be  ouster  or  disturbance  by  means  of  it  amounting  to  an  eviction.^'*^ 
After  tenant  has  enjoyed  his  term  and  received  all  the  benefits  he 
cannot  be  permitted  to  set  up  his  landlord's  want  of  title  as  a  defense 
in  an  action  for  rent.^^*  To  constitute  a  defense,  tenant  must  show 
not  only  a  paramount  title  but  also  that  he  was  evicted  by  virtue  of 
j^^345     ThuSj  in  one  case  two  distinct  tracts  of  land,  a  large  and  a 

Ohio  408;  Parks  v.  City  of  Boston,  =>"  Pub.  Laws  R.  I.,  Feb.  22,  1854. 

15  Pick.  (Mass.)  198;  Folts  v.  Hunt-  =>«  McCardell  v.  Miller,  22  R.  I.  96, 

ley,  7  Wend.  (N.  Y.)  210.  46  Atl.  184. 

''^Dyer  v.  Wightman,   66   Pa.   St.  ="  Russell    v.    Fabyan,    27    N.    H. 

425.  529;    Crawford    v.    Jones,    54    Ala, 

''^Corrigan    v.    City    of    Chicago,  429;     Hayes    v.    Ferguson,    15    Lea 

144  111.  537,  33  N.  E.  746;    O'Brien  (Tenn.)   1. 

V.    Ball,    119    Mass.    28;     Dyer    v.  *"  Hodson  v.  Sharpe,  10  East  350, 

Wightman,  66  Pa.  St.  425.  353. 

^^  Corrigan    v.    City    of    Chicago,  ^"  Sneed    v.    Jenkins,    8    Ired.    L. 

144  111.  537,  33  N.  E.  746.  (N.  Car.)  27. 


391  POR    QUIET    ENJOYMENT.  [§    363 

small  tract,  were  leased  for  a  series  of  years  at  a  certain  rental.  The 
smaller  tract  was  in  litigation,  which  fact  the  lessees  knew,  and  dur- 
ing the  term  the  lessors  lost  the  suit,  whereupon  the  lessees  abandoned 
the  land  and  notified  the  lessors  that  they  rescinded  the  contract,  con- 
trary to  the  wishes  of  the  lessors  who  stated  to  the  lessees  that  they 
should  be  protected  in  their  possession.  The  lessees  were  still  liable 
for  rent  because  the  loss  of  the  suit  did  not  constitute  an  eviction.^*" 
However,  actual  force  is  not  essential  to  a  wrongful  eviction  of  a 
tenant  by  a  landlord.  Such  eviction  may  be  effected  by  the  serving 
of  a  notice  to  quit  at  a  specified  time,  the  moving  of  property  into 
the  buildings  without  tenant's  consent  and  the  abandonment  of  the 
premises  in  consequence  thereof  .^^^  Service  of  summons  in  .ejectment 
suit  against  a  tenant  by  his  landlord  is  a  constructive  eviction.  It  is  a 
demand  by  the  landlord  for  the  possession  of  the  premises  and  the  ten- 
ant has  a  clear  right  in  response  to  such  demand  to  yield  the  possession, 
and  no  act  of  the  former  landlord  could  subsequently  restore  between 
the  parties  the  relation  of  landlord  and  tenant.  The  landlord  could 
recover  no  more  rent.^^^  Where  a  landlord  of  a  tenant  at  will  insisted 
upon  his  right  to  have  a  sub-lessee  hold  directly  from  him,  this  was  a 
breach  of  the  covenant  for  quiet  enjoyment  in  the  lease  by  the  tenant. 
When  the  tenant  sued  for  rent,  the  sub-lessee  could  recoup  in  dam- 

So  in  an  action  for  breach  of  covenant  for  quiet  enjoyment,  it  is 
not  necessary  for  lessee  to  prove  an  actual  forcible  eviction.  Proof 
of  demand  for  possession  by  persons  holding  a  title  paramount  to 
that  of  the  landlord,  and  surrender  of  possession  in  acquiescence  to 
such  demand  entitles  the  tenant  to  a  recovery.^^"  Lessees  have  a  riglit 
to  yield  to  a  demand  for  possession  by  one  having  a  paramount  right 
without  losing  their  remedy  against  their  lessors  on  the  covenant  for 
quiet  enjoyment.^^^  If  a  landlord  has  no  right  to  lease,  tenants  need 
not  wait  until  they  are  evicted  by  judgment.  They  might  yield  to  a 
paramount  title  without  suit  and  would  be  discharged  from  further 
obligation  to  pay  the  rent  reserved  in  the  lease.^^^     Entry  by  one 

'"Hayes     v.     Ferguson,     15     Lea  387,   24   So.   73;    Kane   v.   Mink,   64 

(Tenn.)   1.  Iowa  84,  19  N.  W.  852. 

'"  Tarpy  v.  Blume,  101  Iowa  469,  "'^  King  v.  Bird,  148  Mass.  572,  20 

70  N.  W.  620.  N.  E.  196;  Duncklee  v.  Webber,  151 

'''  Jennings  v.  Bond,  14  Ind.  App.  Mass.  408,  24  N.  E.  1082. 

282,  42  N.  E.  957.  "=  Mussey  v.  Holt,  24  N.  H.  248; 

'**Holbrook   v.   Young,   108   Mass.  Morse  v.  Goddard,  13  Mete.  (Mass.) 

83.  177. 

^»  Tyson    v.    Chestnut,    118    Ala. 


§■   364]  COVEXANTS   IX   LEASES.  392 

having  a  paramount  title  is  equivalent  to  an  eviction  by  legal  process. 
A  tenant  is  not  bound  to  retain  possession  until  actually  expelled  by 
legal  process ;  but  may  quietly  yield  possession,  incurring  the  risk  of 
being  able  to  show  that  the  entry  was  under  a  paramount  title.^^^ 
Where  a  tenant  in  possession  was  ordered  ofE  by  a  sheriff  having  a 
writ  of  restitution  based  on  the  judgment  against  the  landlord  and 
the  tenant  and  his  family  moved  away  and  commenced  to  take  their 
goods  away  and  then  the  parties  entitled  to  possession  executed  a 
lease  to  him,  there  was  such  an  eviction  by -judgment  of  law  that  the 
tenant  was  excused  from  paying  rent  to  the  first  landlord 


354 


§  364.  Eviction  suspends  rent. — After  a  tenant  has  been  evicted, 
there  can  be  no  recovery  of  rent  during  the  continuance  of  the 
eviction.^^^  The  possession  and  quiet  enjoyment  of  the  premises 
by  the  lessee,  without  hindrance  on  the  part  of  the  lessor,  is  an 
implied  condition  to  the  obligation  to  pay  rent.^^®  In  every  lease 
of  land,  the  lessor  is  so  far  bound  by  implication,  for  the  title 
and  enjoyment  by  the  lessee,  that  his  right  to  the  rent  is  dependent 
thereon,  Wliere  the  tenant  is  evicted  from  a  part  of  the  land  by  a 
stranger  on  title  paramount,  it  operates  as  a  suspension  of  the  rent 
pro  tanio.^'"''  But  an  eviction  does  not  forfeit  rent  already  accrued 
•  and  overdue  at  the  date  of  the  eviction,^^^  and  the  only  remedy  of  the 
lessee  in  such  case  is  to  recoup  in  damages.^^^  The  rule  is  the  same, 
although  the  rent  is  payable  in  advance  and  the  eviction  occurs  before 
the  expiration  of  the  period  in  respect  to  which  the  rent  claimed  ac- 
crues.3®°  But,  ordinarily,  the  evicted  tenant  is  released  from  all  lia- 
bility to  pay  rent  from  the  commencement  of  the  quarter  in  which 
the  eviction  occurred.^ ^^  If  a  lessee,  who  has  covenanted  to  pay  rent 
in  advance,  is  evicted  on  a  rent  day,  he  is  discharged  from  his  obliga- 

'"  Marsh  v.  Butterworth,  4  Mich.  ^5?  pog^Q^    y     jones,    2    Ired.    Eq. 

575.  (N.  Car.)   350. 

^*Montanye  v.   Wallahan,   84   111.  =^' Livingston  v.  L'Engle,   27   Fla. 

355.  502,  8  So.  728;  La  Farge  v.  Halsey, 

^'=  Leopold  v.  Judson,  75  111.  536;  1    Bosw.    (N.    Y.)    171;    Hunter    v. 

Hunter  v.  Reiley,  43  N.  J.  L.  480;  Reiley,  43  N.  J.  L.  480. 

Ogilvie  V.  Hall,  5  Hill   (N.  Y.)    52;  ^=' La   Farge    v.    Halsey,    1    Bosw. 

Bennet    v.    Bittle,    4    Rawle     (Pa.)  (N.  Y.)   171. 

339;  Morrison  v.  Chadwick,  7  C.  B.  ^"^  Giles  v.  Comstock,  4  N.  Y.  270; 

266,    62    E.    C.    L.    266;    Salmon    v.  Hunter  v.  Reiley,  43  N.  J.  L.  480. 

Smith,  1  Saund.  202,  204;  Briggs  v.  ^°^  Chatterton  v.  Fox,  5  Duer    (N. 

Thompson,  9  Pa.  St.  338.  Y.)  64;  Fitchburg  &c.  Co.  v.  Melven, 

==«  Field   V.   Herrick,   10   111.   App.  15  Mass.  268. 
591. 


393  FOR    QUIET    ENJOYMENT.  [§    365 

tion.^®^  For  rent  which  by  the  terms  of  the  demise  would  accrue 
during  the  continuance  of  the  eviction,  the  landlord  can  neither  sue 
nor  can  he  distrain  for  the  rent  reserved  or  any  part  of  it;  nor  can 
he  recover  for  use  and  occupation,  although  in  either  case  the  tenant 
has  continued  in  possession  of  the  remaining  part  of  the  premises 
demised.^®^  A  partial  eviction  which  would  suspend  the  entire  rent, 
does  not,  however,  necessarily  terminate  the  lease  or  put  an  end  to 
other  obligations  under  it,  such  as  the  tenant's  covenant  to  repair.^''* 
The  same  rule  would  seem  to  hold  good  where  the  tenant  continues 
liable  for  rent  for  the  part  of  the  premises  he  continues  to  occupy, 
and  he  would  hold  such  part  under  the  original  lease.^®^ 

§  365.  If  a  tenant  is  evicted  from  a  material  part  of  the  premises, 
he  has  a  legal  right  to  abandon  the  whole.  It  is  implied  that  the 
tenant  shall  have  free  use  of  the  whole  premises ;  if  he  is  ousted  from 
any  material  part  of  them  he  may  treat  it  as  an  eviction  and  rescind 
the  lease. ^•'^ 

In  England  the  law  has  been  settled  that  an  eviction  of  a  tenant 
by  the  landlord  from  part  of  the  demised  premises  suspends  the  en- 
tire rent,  although  the  tenant  continues  in  possession  of  the  re- 
mainder.^*''^    In  Massachusetts  the  question  was  left  open  by  early 

^'^  Smith     v.     Shepard,     15     Pick,  it  was  held  by  Chief  Justice  Dallas, 

(Mass.)   147.  at  nisi  prius,  that  the   whole  rent 

363  Morris   v.   Kettle,   57   N.   J.    L.  was  not  suspended,  in  such  a  case, 

218,  30  Atl.  879;   Neale  v.  MacKen-  if  the   tenant  continued   in   posses- 

zie,  1  M.  &  W.  747;   Hunter  v.  Rei-  sion  of  the  residue  of  the  demised 

ley,   43   N.   J.   L.   480;    Morrison   v.  premises,  but  that  he  would  be  lia- 

Chadwick,  7  C.  B.  266,  62  E.  C.  L.  ble  on  a  quantum  meruit.     Stokes 

266;  Salmon  v.  Smith,  1  Saund.  202.  v.  Oooper,  3  Campb.  514,  n.  And  this 

^'^  Smith   v.    McEnany,    170    Mass.  was  stated  as  the  law  in  the  treat- 

26,  48  N.  E.  781;  Leishman  V.  "White,  ises,   afterwards   published,   on   the 

1  Allen  (Mass.)  489.  law    of    landlord    and    tenant,    by 

^"^  Skaggs  V.  Emerson,  50  Cal.  3.  Claydon,  Comyn,  Archbold,  Smythe 

366^ygj.y    y     Dougherty,    102    Ind.  and    Taylor;    in    2    Roscoe   on    Real 

443,  2  N.  E.  123;    Miller  v.  Michel,  Actions   410;    Crabb  on   Real    Prop- 

13  Ind.  App.  190,  41  N.  E.  467;  Rice  erty,  §  205,  and  in  numerous  other 

V.   Dudley,   65   Ala.    68;    Hayner   v.  books.      And    the    king's    bench    in 

Smith,    63    111.    430;    Mayor    &c.    v.  Ireland,  in  the  case  of  Grand  Canal 

Mabie,    13     N.    Y.    151;     Skally    v.  Co.  v.  Fitzsimons,  1  Hud.  &  Br.  449, 

Shute,    132    Mass.    367;     Upton    v.  distinctly    adjudged    this    point    in 

Greenlees,  17  C.  B.  51,  84  E.  C.  L.  51.  the  same  way,  on  the  authority  of 

^"How   v.    Broom,   Gouldsb.   125;  Stokes   v.   Cooper.     But  Mr.   Baron 

Upton  V.  Townend,  17  C.  B.  30,  64,  Parke  in  Reeve  v.  Bird,  1  C.  M.  & 

84  E.  C.  L.  30;   Christopher  v.  Aus-  R.   31,   36,  and   4   Tyrw.    614,   ques- 

tin,  1  Kern.   (N.  Y.)   216.     In  1814  tioned  the  decision  of  Chief  Justice 


§  365]  COVENANTS  IN  LEASES.  394 

cases,'®^  but  it  is  now  settled  in  that  state  that  a  tenant  evicted  by  his 
landlord  from  part  of  the  demised  premises  is  no  longer  liable,  either 
for  rent  or  for  use  and  occupation.^*'®  In  case  of  a  partial  eviction  the 
general  rule  in  the  United  States  is  that,  if  the  landlord  is  respon- 
sible, the  entire  rent  is  suspended,  while,  if  the  partial  eviction  is 
caused  by  the  act  of  a  stranger,  the  rent  is  only  abated  pro  tanto.^""^ 
Ordinarily,  an  eviction  by  the  landlord  will  operate  to  release  the 
tenant  from  any  further  liability  to  pay  rent,  even  for  so  much  of 
the  leasehold  as  he  may  continue  to  occupy.^^^  The  ancient  rule  was 
that  if  a  tenant  was  evicted  from  any  part  of  the  demised  premises,  the 
entire  rent  was  suspended  during  such  eviction.  The  reason  was  that  a 
landlord  ought  not  to  be  encouraged  to  injure  his  tenant  whom,  by  the 
policy  of  the  feudal  law,  he  ought  to  protect.  The  modern  reason 
given  is  that  in  such  case  he  cannot  apportion  his  own  wrong.^^^  This 
was  law  until  the  statute  allowing  an  action  of  use  and  occupation. 
Since  then  the  impression  prevailed  for  a  while  that  the  landlord 
could  bring  use  and  occupation  against  tenants  who  had  been  evicted 
from  part  of  premises.  However  this  impression  has  not  been  sup- 
ported by  the  decided  cases  and  the  established  rule  seems  to  be  that 
a  landlord  who  has  ousted  his  tenant  from  part  of  the  premises  can- 
not recover  on  a  quantum  meruit  the  value  of  the  part  which  the  ten- 
ant still  continues  to  occupy.^^^  The  partial  eviction  of  a  tenant 
from  the  demised  premises  by  a  third  person  having  a  paramount  title 
is  only  a  bar  pro  tanto  to  the  recovery  of  the  rent  reserved,  such  rent 
being  apportionable.^^*      Thus  a  tenant  evicted  from  a  part  of  the 

Dallas,   and   the   recent   case   above  1  Allen  (Mass.)  489;  Lewis  v.  Payn, 

cited  from  17  C.   B.  shows  that  it  4  Wend.    (N.  Y.)   423;   Vermilya  v. 

is  not  the  law  of  England.  Austin,  2  E.  D.  Smith  (N.  Y.)   203; 

2'^  Shumway    v,    Collins,    6    Gray  Morris  v.  Kettle,  57  N.  J.  L.  218,  30 

(Mass.)    227;    Fuller    v.    Ruby,    10  Atl.   879;    Wreford  v.   Kenrick,   107 

Gray   (Mass.)   285.  Mich.  389,  65  N.  W.  234;   Briggs  v. 

^•""Leishman    v.    White,    1    Allen  Hall,  4  Leigh    (Va.)   484;    Tunis  v. 

(Mass.)    489;    Smith    v.    McEnany,  Grandy,  22  Grat.   (Va.)   109. 

170  Mass.  26,  48  N.  E.  781.    But  see  ^'^  Mack  v.  Patchin,  42  N.  Y.  167, 

Fitchburg   &c.    Co.    v.    Melvern,    15  1  Am.   R.   506;    Bentley  v.   Sill,   35 

Mass.  258,  271.  111.  414;   Smith  v.  Wise,  58  111.  141; 

""Collins  V.  Karatopsky,  36  Ark.  Hoagland  v.  New  York  &c.  R.  Co., 

316;  Hyman  v.  Jockey  Club  &c.  Co.,  Ill  Ind.  441,  12  N.  E.  83. 

9    Colo.    App.    299,    48    Pac.    671;  "- Hodgkins  v.  Robson,  Vent.  276. 

Skaggs  V.  Emerson,  50  Cal.  3;  Col-  "^Leishman    v.    White,    1    Allen 

burn  V.  Morrill,  117  Mass.  262;  Fil-  (Mass.)    489;    Vermilya   v.   Austin, 

lebrown    v.    Hoar,    124    Mass.    580;  2  E.  D.  Smith   (N.  Y.)   203;  Briggs 

Smith   V.   McEnany,   170   Mass.    26,  v.  Hall,  4  Leigh   (Va.)  484. 

48  N.  E.  781;   Leishman  v.  White,  ='*Willard  v.   Tillman,   19   Wend. 


395  FOR   QUIET   ENJOYMENT.  [§    366 

leased  premises  during  his  term,  under  a  mortgage  of  which  he  had 
notice  when  taking  the  lease,  is  liable  for  a  due  proportion  of  the  rent 
for  the  part  of  the  premises  which  he  continues  to  occupy.  A  rever- 
sion is  a  thing  in  its  nature  severable,  and  the  rent  as  incident  to  it 
may  be  divided  and  ought  to  be  paid  to  those  who  have  the  land.  A 
reversioner  may  sell  his  estate  in  different  parts  to  as  many  different 
persons  and  the  tenant  will  be  bound  to  pay  to  each  his  due  propor- 
tion of  rent.^^°  But  a  wrongful  eviction  by  the  landlord  from  a  part 
of  the  demised  premises  suspends  the  rent  until  the  possession  is  re- 
stored and  the  landlord  cannot  recover  a  portion  of  the  rent  agreed 
upon  or  any  compensation  for  the  part  of  the  premises  occupied  by 
the  tenant  while  the  eviction  continued.^ ^"^  However  in  Alabama  the 
rule  is  different.  In  that  state,  when  the  landlord  enters  and  dis- 
possesses the  tenant  of  a  part  of  the  premises,  a  discharge  of  the  en- 
tire rent  will  not  result,  unless  it  be  shown  that  the  tenant  surren- 
dered or  abandoned  possession  entirely.  Nothing  less  than  an  entire 
abandonment  or  surrender  will  operate  a  dissolution  of  the  tenancy, 
and  a  suspension  or  discharge  of  the  entire  rent.  The  rent  is  dis- 
charged only  'pro  tanto,  to  the  extent  of  the  value  of  the  use  and  oc- 
cupation of  that  part  of  the  premises  of  which  the  tenant  is  dispos- 
sessed, if  he  remains  in  undisturbed  possession  of  the  rest.^^'^ 

§  366.  If  the  lessor  g^ve  to  his  lessee  a  complete  and  perfect  right 
of  possession  to  the  demised  premises,  he  has  done  all  that  he  is  re- 
quired to  do  by  the  terms  of  an  ordinary  lease  and  the  tenant  assumes 
the  burden  of  enforcing  such  right  to  possession  as  against  all  wrong- 
ful possessors,  even  against  a  former  tenant  who  holds  over,^^^  Upon 
the  well-settled  construction  of  the  covenants  of  title  and  quiet  en- 
joyment, it  is  not  the  duty  of  the  landlord,  when  the  demised  prem- 
ises are  wrongfully  held  by  a  third  person,, to  take  the  necessary  steps 
to  put  the  lessee  in  possession.  The  latter,  being  clothed  with  the 
title  by  virtue  of  the  lease,  ought  to  pursue  such  legal  remedies  as 

(N.   Y.)    358;    Fillebrown   v.   Hoar,  lins,     6     Gray     (Mass.)     227,     232; 

124    Mass.    580;    Pitchburg    &c.    Co.  Smith  v.  Raleigh,  3  Campb.  513. 

V.  Melven,  15  Mass.  268.  «'' Warren  v.  Wagner,  75  Ala.  188; 

^'''Cheairs  v.  Coats,  77  Miss.  846,  Crommelin  v.  Thiess,  31  Ala.   412; 

28  So.  728.  Chamberlain    v.    Godfrey,    50    Ala. 

""Hayner   v.    Smith,    63    111.   430,  530;    Crossthwaite  v.   Caldwell,  106 

435;   Briggs  v.  Hall,  4  Leigh   (Va.)  Ala.    295,    18    So.    47;    Anderson   v. 

484;  Dyett  v.  Pendleton,  8  Cow.  (N.  Winton,  136  Ala.  422,  34  So.  962. 

Y.)   727;   Leishman  v.  White,  1  Al-  "'Becker  v.   DeForest,  1   Sweeny 

len   (Mass.)    489;    Shumway  v.  Col-  (N.    Y.)    528;    Ratkowski   v.    Maso- 

lowski,  57  ni.  App.  525. 


§  367]  COVENAXTS  IX  LEASES.  396 

the  law  has  provided  for  gaining  possession.^"  According  to  this 
doctrine  a  lessee  who  is  kept  out  of  possession  by  the  holding  over  of 
a  former  tenant  cannot  bring  an  action  against  his  lessor  for  breach 
of  the  covenant  of  quiet  enjoyment.^®"  The  omission  of  a  landlord 
to  perform  his  covenant  to  put  the  lessee  into  possession  does  not 
amount  to  an  eviction  and  where  tenant  enters  into  possession  of  part 
his  failure  to  acquire  the  whole  is  no  bar  to  the  lessor's  claim  for 
rent.^^^  In  arguing  in  support  of  this  doctrine  the  New  York  court 
said:  "I  admit  the  covenant  of  quiet  enjoyment  means  to  insure  to 
the  lessee  a  legal  right  to  enter  and  enjoy  the  premises  and  if  he  is 
prevented  from  entering  into  the  possession  by  a  person  already  in, 
under  a  paramount  title,  the  action  may  be  sustained.  .  .  .  But 
if  the  party  holding  is  a  wrong-doer,  the  remedy  of  the  lessee  is  as 
perfect  and  effectual  to  dispossess  him  after,  as  that  of  the  lessor  was 
before,  the  execution  of  the  lease.  .  .  .  Upon  the  well-settled  con- 
struction of  covenants  of  title  and  quiet  enjoyment,  it  is  not  the  duty 
of  the  landlord,  when  the  demised  premises  are  wrongfully  held  by  a 
third  person,  to  take  the  necessary  steps  to  put  his  lessee  into  pos- 
session."^^ ^  The  right  to  possession  at  the  end  of  the  existing  term 
is  in  the  lessee  under  the  new  lease  and  not  in  the  lessor.^  ®^ 

§  367.  In  direct  opposition  to  the  law  as  just  stated  it  is  estab- 
lished in  England  and  in  several  jurisdictions  in  the  United  States 
that  the  lessor  is  bound  to  put  the  lessee  in  possession.^^*  According 
to  this  doctrine  there  is  an  implied  covenant  on  the  part  of  the  lessor, 
that,  when  the  time  comes  for  the  lessee  to  take  possession  under  the 
lease,  according  to  the  terms  of  the  contract,  the  premises  shall  be 
open  to  his  entry.    In  other  words,  that  there  shall  be  no  impediment 

*'«  Gardner  v.  Keteltas,  3  Hill   (N.  ='=  Gardner  v.  Keteltas,  3  Hill   (N. 

Y.)    330;    Pendergast   v.    Young,    21  Y.)   330. 

N.    H.    234;     Sigmund    v.    Howard  ^^  Beidler  v.  Fish,  14  111.  App.  29. 

Bank,    29    Md.    324;    Underwood    v.  3S4  Qgg  ^   Qi^y^  5  gj^g   44Q.  jenks 

Birchard,    47    Vt.    305;     Gazzolo    v.  v.   Edwards,    11   Exch.    775;    L'Hus- 

Chambers,    73    HI.    75;     Cozens    v.  sier  v.   Zallee,   24   Mo.   13;    Hughes 

Stevenson,    5    S.    &   R.    (Pa.)    421;  v.  Hood,  50  Mo.  350;  King  v.  Reyn- 

Playter    v.     Cunningham,     21     Cal.  olds,  67  Ala.  229;    Spencer  v.  Bur- 

229.  ton,   5  Blackf.    (Ind.)    57;    Clark  v. 

*'°  Gazzolo  V.  Chambers,  73  ni.  75;  Butt,   26    Ind.   236;    Vincent  v.   De- 

Pendergast  v.  Young,  21  N.  H.  234.  field,  98   Mich.   84,   56   N.   W.    1104; 

='^  O'Brien  v.   Smith,  13   N.   Y.   S.  Hertzberg    v.    Beisenbach,    64    Tex. 

408,  37  N.  Y.  St.  41,  affirmed  without  262. 
opinion,    129    N.    Y.    620,    29    N.    E. 
1029. 


397  FOR    QUIET   EXJOYMEXT.  [§    367 

to  his  taking  possession.^'^^  This  view  makes  it  the  duty  of  the  lessor 
to  put  the  lessee  in  possession  and  until  he  does  so  he  cannot  recover 
rent.  Consequently  a  lessee  is  under  no  obligation  to  bring  suit  for 
possession  of  the  leased  premises  against  a  third  person  in  posses- 
sion.^*'' .  The  foundation  of  this  rule  has  been  summed  up  in  the  re- 
mark that  'lie  who  lets  agrees  to  give  possession,  and  not  merely  the 
chance  of  a  law  suit."^®'^  "One  who  accepts  a  lease  expects  to  enjoy 
the  property,  not  a  mere  chance  of  a  law  suit.  A  lease  for  a  year 
or  a  term  of  years  is  not  a  freehold.  It  is  a  chattel  interest.  The 
prime  motive  of  the  contract  is  that  the  lessee  shall  have  possession; 
as  much  so  as  if  a  chattel  were  the  subject  of  the  purchase.  Delivery 
is  one  of  the  elements  of  every  executed  contract."^**  The  fact  of 
enjoyment  or  of  the  tender  of  the  privilege  to  enjoy  made  by  the 
lessor  to  the  lessee  ought  to  be  averred  in  the  declaration,  because 
proof  of  such  facts  at  the  trial  would  be  preliminary  to  the  plaintifE's 
right  of  recovery.^*^  Failure  to  put  a  lessee  in  possession  justifies 
him  in  refusing  to  be  bound  by  the  lease,  and  in  rescinding  the  con- 
tract.^^''  Where  land  in  the  possession  of  a  tenant  is  leased  to  an- 
other, and  the  lessor  covenants  to  put  the  second  lessee  into  posses- 
sion, the  lessee  acquires  the  right  to  maintain  an  action  to  recover 
possession  from  the  former  tenant  holding  over  but  he  is  not  bound 
to  exercise  this  right,  and  if  the  landlord  fails  to  put  him  in  posses- 
sion, tenant  is  not  liable  for  rent.  The  landlord  has  committed  a 
breach  in  limine.^^'^  The  new  lessee  may  bring  ejectment  against  the 
tenant  holding  over  or  he  may  sue  the  lessor  for  breach  of  his  cove- 
nant to  deliver  possession.^^^  The  right  of  the  lessee  to  bring  eject- 
ment has  been  recognized  in  the  older  cases,^^^  and  under  a  forcible 
detainer  statute,  it  has  been  held  that  a  lessee  can  recover  possession 
of  premises  from  a  former  lessee  of  the  same  landlord  who  held  over 
wrongfully.  The  junior  lessee's  right  to  the  possession  and  his  right 
to  recover  rent  is  as  absolute  as  if  he  were  the  sole  owner  of  the  fee. 
Being  the  sole  party  entitled  to  possession  or  to  the  rents  he  must 
be  the  real  party  in  interest.^^*    In  the  same  jurisdiction  it  was  de- 

^"King  V.  Reynolds,   67  Ala.  229.     125,   18   Pac.   138;    Spencer  v.   Bur- 

="*<=  Brandt    v.     Phillippi,     82  Cal.     ton,  5  Blackf.   (Ind.)   57. 
640;   23  Pac.  122.  ^^^  Kean  v.  Kolkschneider,  21  Mo. 

'"Coe  V.  Clay,  5  Bing.  440.  App.  538. 

'*'  King  V.  Reynolds,  67  Ala.  229,         ="=  Hughes  v.  Hood,  50  Mo.  350. 
233,  per  Stone,  J.  ^"^  Gazzolo  v.  Chambers,  73  111.  75; 

^'Mulford  v.  Young,  6  Ohio  295.     Gardner  v.  Keteltas,  3  Hill   (N.  Y.) 
Contra,   Douglass  v.   Branch   Bank,     330. 
19  Ala.  659.  ="' Capital  Brewing  Co.  v.  Crosbie, 

""Dengler  v.   Michelssen,  76  Cal.     22  Wash.  269,  60  Pac.  652. 


§  367a]  COVENANTS  ix  leases.  398 

cided  that  while  the  tenant  may  institute  his  action  to  recover  posses- 
sion, the  obligation  of  the  landlord  is  to  deliver  the  possession  to  him 
and,  therefore,  the  landlord  has  sufficient  interest  in  the  possession 
to  maintain  the  action.^®^  It  has  been  determined  in  unlawful  de- 
tainer by  a  landlord  against  a  tenant  holding  over,  that  an  outstand- 
ing lease  by  the  landlord  to  a  third  person  under  whom  the  tenant 
does  not  claim,  is  no  defense.^** 

§  367a.  Where  the  lessor  is  in  possession  of  the  leased  premises 
and  refuses  to  vacate  after  the  beginning  of  the  lease,  the  lessee  may 
abandon  the  premises  and  escape  further  liability  for  rent.  The  rule 
of  law  is  clear  that  a  lessee  may  abandon  a  contract  of  lease  which  the 
lessor  has  refused  to  perform.^^^  In  case  a  lessor,  after  executing  an 
instrument  of  demise,  died  before  the  beginning  of  the  term,  his  ad- 
ministrator would  be  bound  by  the  lease,  and  for  him  to  lease  to  an- 
other would  be  a  breach  of  the  implied  covenant  for  quiet  enjoyment 
for  which  an  action  would  lie.^^*  This  disposes  of  those  cases  where 
some  wrongful  act  of  the  lessor  himself  prevents  the  lessee  from  en- 
tering into  possession ;  for  it  seems  clear  that,  under  such  circum- 
stances, the  lessee  can  sue  his  lessor  for  breach  of  an  express  or  im- 
plied covenant  for  quiet  enjoyment.  Such  was  the  case  where  a  land- 
owner executed  a  second  lease  and  put  the  second  lessee  in  possession 
to  the  exclusion  of  the  prior  one.  The  first  lessee  had  his  election  of 
remedies  either  to  sue  his  lessor  on  the  breach  of  covenant  for  quiet 
enjoyment  or  to  bring  ejectment  against  the  second  lessee.^^^  In  the 
class  of  cases  under  consideration,  the  lessors  themselves  deny  the 
right  and  refuse  to  permit  the  lessee  to  occupy,  in  accordance  with 
their  own  lease.  In  such  cases  it  seems  very  obvious  that  the  lessee 
should  not  be  driven  to  his  ejectment,  but  should  be  allowed  to  bring 
his  action  for  the  damages  sustained.**"*  The  same  result  would  fol- 
low when  there  was  a  valid  outstanding  lease  and  the  lessor  did  not 
have  the  power  to  confer  possession  according  to  the  terms  of  his  con- 
tract.^oi 

But  the  implied  covenant  does  not  extend  to  any  period  beyond  the 
day  when  possession  is  to  be  delivered.  If,  after  that  time,  a  stranger 
trespasses  on  the  premises,  and,  obtaining  possession,  withholds  it  from 

^=  Schreiner  v.  Stanton,  26  Wash.        ='^  Clark  v.  Butt,  26  Ind.  236. 
563,  67  Pac.  219.  ^'^  Berrington  v.  Casey,  78  111.  317. 

'"•=  Vincent  v.  Defield,  98  Mich.  84,         ^^  Trull  v.  Granger,  8  N.  Y.  115. 
56   N.  W.   1104;    King  v.  Reynolds,        '"'^  Cohn  v.  Norton,  57  Conn.  480, 

67  Ala.  229.  18  Atl.  595. 

'"Reed  v.  Reynolds,  37  Conn.  469. 


399  FOE  QUIET  ENJOYMENT.  '  [§   368 

the  lessee,  his  remedy  is  against  the  stranger  and  not  against  the  land- 
lord."2 

§368.  Tenant's  remedy  by  action.— A  breach  of  a  covenant  for 
quiet  enjoyment  is  caused  by  an  eviction  which  justifies  the  tenant 
in  abandoning  the  premises  and  allows  him  to  escape  further  liability 
for  rent.  But  this  is  not  the  only  effect  of  the  breach  of  such  a  cove- 
nant. If,  through  an  act  of  the  lessor,  the  tenant  is  removed  before 
the  expiration  of  the  term  without  fault  on  his  part  he  is  entitled  to 
maintain  an  action  for  damages  against  the  lessor.**^^  The  law  is 
settled  that  where  a  landlord  unlawfully  evicts  a  tenant,  takes  pos- 
session of  the  premises  and  deprives  him  of  the  beneficial  use  and  en- 
joyment, a  cause  of  action  arises  in  favor  of  the  tenant  ;*"*  or  the  ten- 
ant may  recoup  his  damages  when  sued  by  the  landlord  for  rent  under 
the  contract  of  lease.*"^  A  defense  by  way  of  recoupment  for  breach 
of  a  covenant  of  quiet  enjoyment  is  a  privilege  not  a  duty,  and  the 
lessee  is  entitled  to  resort  to  a  cross  action,  not  being  debarred  from 
seeking  damages  for  a  breach  of  that  covenant  by  a  failure  to  plead 
it  in  defense  of  an  action  for  rent.*"*'  Furthermore  the  lessor,  after 
insisting  upon  the  validity  of  the  lease  for  the  purpose  of  collecting 
his  rent,  cannot  treat  it  as  invalid  for  the  purpose  of  avoiding  liability 
on  his  implied  covenant  for  quiet  enjoyment.  He  cannot  treat  the 
lease  as  valid  for  one  purpose  and  invalid  for  another.*"'^ 

In  North  Carolina  it  has  been  held  that  there  is  no  implied  contract 
that  the  lessor  will  not  molest  the  lessee  in  his  possession;  but  there 
is  an  implied  condition  to  that  effect,  upon  a  breach  of  which  the 
lessee  is  discharged  from  his  obligation  to  pay  rent.  If  the  lessor 
enters  upon  the  lessee  during  the  term  and  dispossesses  him,  the 
remedy  of  the  latter  is  an  action  ex  delicto .^'^^ 

For  a  groundless  injunction  against  a  tenant's  enjoyment  of  leased 

*"'Hertzberg    v.     Beisenbach,     64  (N.  Y.)    155;    Batterman  v.  Pierce, 

Tex.  262;  King  v.  Reynolds,  67  Ala.  3  Hill  (N.  Y.)  171. 

229.  ««=  Riley   v.   Hale,    158   Mass.    240, 

*"'Maule  V.  Ashmead,   20   Pa.   St.  33  N.  E.  491;    Hunt  v.  Brown,  146 

482.  Mass.  253,  255,  15  N.  E.  587;   Fiske 

''^Wacholz     V.     Griesgraber,     70  v.   Steele,   152   Mass.   260,   25   R   E. 

Minn.   220,  73  N.  W.  7;   Cannon  v.  291. 

Wilbur,  30  Neb.  777,  47  N.  W.  85;  *»' Riley   v.   Hale,    158   Mass.    240, 

Mack   V.    Patchin,    42    N.   Y.    167,    1  33  N.  E.  491;    Bradley  v.  Brigham, 

Am.  R.  506.  149  Mass.  141,  21  N.  E.  301;  Ormsby 

*°' Mayor  &c.  v.  Mabie,   13   N.   Y.  v.  Dearborn,  116  Mass.  386. 

151;    Ives  v.  Van  Epps,   22   Wend.  ""  Barneycastle  v.  Walker,  92  N. 

Car.  198. 


§■   369]  COVENANTS    IN    LEASES.  400 

premises,  which  has  been  dissolved,  the  tenant  may,  in  addition  to  his 
remedy  on  the  injunction  bond,  recover  damages  by  an  action  on  the 
case  for  the  injury  done  him  by  being  improperly  enjoined.***^ 

§  369.  Where  the  lessee  has  actually  been  deprived  of  the  posses- 
sion or  use  of  demised  premises,  damages  resolve  themselves  into 
three  elements ;  first,  the  loss  of  the  bargain ;  second,  expense  and  loss 
incident  to  removal;  and  third,  the  loss  of  profits  which  the  lessee 
could  have  made  if  he  had  been  allowed  to  continue  in  possession. 
In  regard  to  the  first  element  of  damages,  the  rule  originally  laid 
down  was  that  the  lessee  who  had  been  evicted  could  not  recover  as 
part  of  his  damages  the  value  of  the  term.*^''  On  analogy  to  cases 
where  sales  of  real  estate  fell  through  and  the  vendees  could  only 
recover,  beyond  deposits  made  and  expenses  incident  to  examination 
of  title,  nominal  damages,  the  recovery  of  the  lessee  was  limited  in 
like  manner.  At  an  early  day  certain  cases  were  said  to  be  exceptions 
to  this  rule;  as  if  the  vendor  is  guilty  of  fraud,  or  can  convey  but 
will  not,  or  if  he  has  covenanted  to  convey  when  he  knew  he  had  no 
authority  to  do  so,  or  where  it  is  in  his  power  to  remedy  a  defect  in  his 
title  and  he  refuses  to  do  so.  In  all  these  cases  the  vendor  or  lessor 
was  liable  to  the  vendee  or  lessee  for  the  loss  of  the  bargain,  under 
rules  analogous  to  those  applied  in  the  sale  of  personal  property.*^^ 
In  England  the  original  rule,  as  applicable  to  an  evicted  lessee,  has 
been  repudiated  in  two  well-considered  cases.*^^  In  each  of  these 
cases  the  court  held,  after  elaborate  argument,  that  a  lessee,  upon  a 
covenant  for  quiet  enjoyment,  was  entitled  to  recover  the  value  of  the 
term  lost,  as  well  as  for  mesne  profits  paid  to  the  owner  of  the  para- 
mount title.  The  same  principle  has  been  applied  by  courts  in  the 
United  States  so  that  the  present  doctrine  as  to  this  element  of  dam- 
age is,  that  the  lessee  is  entitled  to  recover  the  value  of  the  leasehold 
estate  minus  the  rent  reserved.*^^ 

*»»  Hubble  V.  Cole,  88  Va.  236,  13  ton   v.    Fox,    5    Duer    (N.    Y.)    64; 

S.  E.  441.  Dean   v.    Roesler,    1    Hilt.    (N.    Y.) 

""Kelly  V.  Dutch  Church,  2  Hill  420;    Greene  v.   Tallman,  20   N.   Y. 

(N.   Y.)    105;    Moak  v.   Johnson,   1  191;    Conger   v.   Weaver,   20   N.   Y. 

Hill   (N.  Y.)   99;   Baldwin  v.  Munn,  140;   Lock  v.  Furze,  L.  R.  1  C.  P. 

2  Wend.   (N.  Y.)   399.  441;    Engel  v.  Fitch,  L.  R,  3  Q.  B. 

*"Bush    V.    Cole,    28    N.    Y.    261;  314. 
Trull    V.    Granger,    8    N.    Y.    115;         "-Williams  v.  Burrell,  1  M.  G.  & 

Driggs    v.    Dwight,    17    Wend.    (N.  S.   402,    50   E.   C.   L.   401;    Lock  v. 

Y.)    71;    Brinckerhoff  v.   Phelps,  24  Furze,  19  C.  B.    (N.  S.)    96,  115  E. 

Barb.  (N.  Y.)  100;  Tracy  v.  Albany  C.  L.  94. 
Exchange  Co.,  7  N.  Y.  472;  Chatter-        "^  Mack  v.  Patchin,  42  N.  Y.  167, 


i 


401  i'OR   QUIET   ENJOYMENT.  [§   369 

"The  measure  of  damages  is  the  difference  between  the  actual  rental 
value  and  the  rent  reserved.  The  rule  is  the  same,  whether  the  leased 
property  is  a  farm,  a  dwelling  house  or  hotel,  or  business  premises."*^* 
^'Eental  value"  and  "value  of  use"  of  premises  means  substantially 
the  same  thing;  the  term  rental  value,  as  used  to  measure  damages, 
has  been  deemed  to  be  the  equivalent  of  actual  damages  in  its  legal 
signification.  It  is  the  commercial  value  of  the  use  of  a  thing  and 
the  fact  is  ascertainable  by  direct  proof  of  what  it  would  rent  for,  or 
by  the  proof  of  facts  from  which  a  fair  rental  value  may  be  known. 
The  one  is  as  direct  and  certain  as  the  other.  It  may  be  assumed  in 
judicial  proceedings  that  the  results  of  profits,  if  they  are  reasonable, 
definite  and  certain,  arising  from  the  use  of  real  estate,  afford  a  proper 
basis  for  fixing  a  rental  value.'*^^  Wliere  a  lessee  for  a  crop  rent 
brought  an  action  against  his  lessor  for  failure  to  let  him  into  pos- 
session, evidence  of  the  average  yield,  of  the  cost  of  production  and 
putting  on  the  market,  together  with  the  market  value  of  the  crops, 
was  held  competent  to  show  the  measure  of  damages.*^®  Where  rent 
has  been  paid  in  advance"^  or  where  a  lessee  has  been  excluded  from 
possession  and  has  nevertheless  been  compelled  to  pay  rent  during 
the  period  of  such  exclusion,  the  amount  so  paid  is  to  be  added  in 
computing  damages;  otherwise  the  lessee's  actual  loss,  by  reason  of 
the  breach  of  the  implied  covenant,  will  not  be  made  good.*^^  Thus, 
where  a  lessee  was  to  clear  land  in  payment  for  the  use  of  it,  and 
after  clearing  the  land  was  evicted,  the  value  of  his  labor  in  making 

1  Am.  R.  506;    Trull  v.  Granger,  8  damages  has  been  applied  where  a 

N.  Y.   115;    Myers  v.  Burns,  35  N.  crop  rent  was  reserved.     Jefcoat  v. 

Y.  269,  272;  Tyson  v.  Chestnut,  118  Gunter,  73  Miss.  539,  19  So.  94. 

Ala.  387,  24  So.  73;  Jefcoat  v.  Gun-  ^"  Sedg.    Dam.    (8th   ed.),    §    185; 

ter,  73  Miss.  539,  19  So.  94;  Cannon  Dobbins  v.  Duquid,  65  111.  464;  Tay- 

V.  Wilbur,   30   Neb.   777,   47   N.   W.  lor  v.  Cooper,  104  Mich.   72,  62  N. 

85;  Kenny  v.  Collier,  79  Ga.  743,  8  W.  157;   Shuman  v.  Smith,  100  Ga. 

S.  E.  58;   Hodges  v.  Fries,  34  Fla.  415,  28  S.  E.  448;   Adair  v.  Bogle, 

63,  15  So.   682;   Adair  v.  Bogle,  20  20    Iowa   238;    Riley    v.    Hale,    158 

Iowa  238;    Leick  v.   Tritz,  94   Iowa  Mass.  240,  33  N.  E.  491. 

322,  62  N.  W.  855;  Taylor  v.  Cooper,  "=  Leick  v.  Tritz,  94  Iowa  322,  62 

104  Mich.  72,  62  N.  W.  157;  Knowles  N.  W.  855;  Alexander  v.  Bishop,  59 

V.   Steele,   59   Minn.   452,   61   N.   W.  Iowa  572,  13  N.  W.  714. 

557;    Jonas  v.  Noel,  98' Tenn.   440;  "» Chew    v.    Lucas,    15    Ind.    App. 

Newbrough     v.     Walker,     8     Grat.  595,  43  N.  E.  235. 

(Va.)  16;   Engstrom  v.  Merriam,  25  "•  Cohn  v.  Norton,  57  Conn.   480, 

Wash.  73,   64  Pac.  914;    Serfling  v.  18  Atl.  595;  Leick  v.  Tritz,  94  Iowa 

Andrews,    106    Wis.    78,    81    N.    W.  322,  62  N.  W.  855. 

991.     This  rule  as  to  the  deduction  "^  Riley   v.    Hale,    158    Mass.    240, 

of  rent  payable  from  the  amount  of  33  N.  E.  491. 

Jones  L.  &  T.— 26 


§  370]  COVENANTS  IN  LEASES.  403 

the  clearing  was  added  to  the  lessee's  damages.*^^  Yet  it  has  been 
held  that  the  use  of  the  term  "market  value"  to  characterize  the  value 
of  the  leasehold  interest  is  improper  where  a  leasehold  cannot  be  said 
to  have  a  market  value.  In  determining  the  value  of  the  leasehold 
it  has  been  declared  that  its  worth  is  not  the  amount  it  would  bring 
if  offered  for  sale  in  open  market  but  the  value  to  the  lessee.  In 
other  words,  it  is  the  sum  which  he  would  be  obliged  to  pay  for  a  term 
of  equal  duration  in  premises  equally  desirable  for  his  business  or 
for  the  use  he  intended  to  make  of  it.*^"  It  follows  from  this  rule 
for  estimating  them  that  no  damages  can  be  recovered  if  the  rent  re- 
served for  the  unexpired  term  will  exceed  any  possible  profit  which 
the  lessee  could  hope  to  make  out  of  the  use  of  the  premises.*^ ^ 

Por  a  breach  of  the  covenant  that  a  lessor  had  such  title  as  enabled 
him  to  give  a  good  lease  of  the  premises,  the  lessee  could  only  recover 
nominal  damages  as  long  as  he  remained  in  uninterrupted  posses- 
sion.^2^  In  a  case  of  partial  disturbance  and  interruption,  the  law 
fixes  no  precise  rule  of  damages ;  but  the  lessee's  recovery  is  not  lim- 
ited to  the  amount  of  rent  reserved,  for  that  may  be  nominal  only 
and  not  express  the  real  consideration  for  the  lease.*^^ 

In  a  Delaware  case  it  has  'been  stated  that  if  an  unlawful  eviction  is 
attended  by  circumstances  of  aggravation  the  jury  may  award  exem- 
plary damages.*^* 

§  370.  In  regard  to  the  second  element  of  damage  the  rule  for  the 
measure  of  damages  is  that  the  tenant  is  entitled  to  recover  for  such 
loss  as  results  directly  and  necessarily  from  the  breach  of  the  contract 

and  is  capable  of  being  accurately  estimated.*-^  It  seems  that  mesne 
profits  which  the  lessee  had  been  compelled  to  pay  over  to  the  holder 
of  a  paramount  title  would  be  included  under  this  head.  For  refusing 
to  allow  the  lessee  to  occupy  according  to  agreement,  the  lessor  ren- 
ders himself  liable  in  damages,  the  general  rule  for  the  measure  of 
damages  in  such  cases  being  the  difference  between  the  rent  reserved 

""  Carter  v.  Lacy,  3  Ind.  App.  540,  *"*  Bonsall    v.    McKay..     1    Houst. 

29  N.  E.  168.  (Del.)   520. 

*-"  Jonas  V.  Noel,  98  Tenn.  440,  39  *"-^  Cohn  v.  Norton,  57  Conn.  480, 

S.  W.  724.  18    Atl.    595;    Hodges    v.    Fries,    34 

"^O'Connor  v.  City  of  Memphis,  7  Fla.  63,  15  So.  682;  Adair  v.  Bogle, 

Lea  (Tenn.)  219;  Leick  v.  Tritz,  94  20  Iowa  238;   Kelly  v.  Davis,  9  Ky. 

Iowa  322,  62  N.  W.  855.  L.   R.   647;    Poposkey  v.    Munkwitz, 

«=  Harms   v.    McCormick,    132    111.  68  Wis.  322,  32  N.  W.  35;   Chatter- 

104,  22  N.  E.  511.  ton    v.    Fox,    5    Duer    (N.    Y.)    64; 

*=^  Dexter     v.     Manley,     4     Cush.  Snow  v.  Pulitzer,  142  N,  Y.  263,  36 

(Mass.)   14.  N.  E.  1059. 


403  FOR    QUIET   ENJOYMENT.  .[§■   371 

and  the  value  of  the  premises  for  the  term.  If  the  rent  reserved  is 
the  full  value  of  the  premises,  the  lessee  can  recover  only  nominal 
damages,  even  though  the  refusal  of  the  landlord  is  without  just 
cause.  But  if  the  tenant  has  sustained  in  addition  a  particular  loss 
which  is  the  direct  and  necessary  or  natural  consequence  of  the  breach 
of  contract  by  the  landlord  he  may  recover  therefor.*^®  In  case  the 
lessor  fails  to  put  the  lessee  into  possession  according  to  the  terms 
of  the  contract,  the  proper  measure  of  damages  seems  to  be  that  the 
lessee  is  entitled  to  recover  rent  paid  in  advance,  the  difference  be- 
tween the  rent  agreed  to  be  paid  and  the  value  of  the  term,  and  such 
special  damages  as  would  arise  naturally  and  generally  from  such  a 
breach  of  contract.  If  special  circumstances  under  which  the  con- 
tract was  made  were  stated  at  the  time  and  known  to  both  parties, 
then  the  amount  of  damages  which  would  ordinarily  follow  from  a 
breach  of  the  contract  under  those  special  circumstances  could  be  re- 
covered.*^' An  evicted  lessee  may  also  recover  damages  for  the  inter- 
ruption of  an  established  business.  The  measure  of  such  damages  is 
what  gain  he  can  show  with  reasonable  certainty  that  he  would  have 
made,  that  being  what  he  is  entitled  to  recover  for.  The  profits 
actually  realized  in  the  preceding  years  under  the  lease  may  be  shown 
as  tending  to  prove  the  value  of  the  premises  to  him.*^^  But  profits 
resulting  from  a  criminal  violation  of  the  Sunday  laws,  can  form  no 
legal  basis  for  the  estimation  of  damages  for  the  eviction  of  a  lessee,*-^ 
and  the  recovery  is  limited  to  such  loss  as  could  not  reasonably  be 
avoided.*^*' 

Where  a  covenantee  is  evicted  by  a  stranger,  holding  a  paramount 
title,  by  judgment  of  law,  the  measure  of  damages  includes  the  ex- 
penses of  the  covenantee  in  defending  the  suit,  including  fees  paid  to 
counsel.*^^ 

§  371.  Loss  of  prospective  profits,  the  third  element  of  damage, 
seems  not  to  be  properly  recoverable  in  the  case  of  eviction.  Taking 
the  rule  that  damages  for  the  breach  of  a  contract  are  limited  to  such 
as  may  be  reasonably  considered  to  have  been  in  contemplation  by  the 
parties,  at  the  time  of  the  making  of  such  contract,  as  the  probable  re- 

^^  Adair  v.  Bogle,  20  Iowa  238.  '^'  Raynor  v.   Valentine   Blatz  &c. 

"'  Cohn  V.  Norton,  57   Conn.   480,     Co.,  100  Wis.  414,  76  N.  W.  343. 
18  Atl.  595.  ^^'o  Dobbins  v.  Diiquid,  65  111.  464. 

^^  Taylor  v.  Cooper,  104  Mich.  72,  '^'  Levitzky  v.  Canning,  33  Cal. 
62  N.  W.  157.  •      299;    Swett   v.    Patrick,    12    Me.    9; 

Pitkin  v.  Leavitt,  13  Vt.  379. 


§  372]  COVENANTS  IN  LEASES.  404 

suit  of  a  breach  of  it/^^  it  follows  that  expected  profits  from  the  use  of 
the  demised  premises  are  too  remote  to  be  recovered  and  cannot  be 
used  as  a  basis  for  estimating  damages.*^^  In  order  that  the  lessee 
may  recover  for  loss  of  prospective  profits  or  for  expenditures  for 
attempting  to  move  in,  knowledge  of  the  situation  must  be  brought 
home  to  the  lessor  at  the  time  the  lease  was  made.  Without  such 
knowledge,  it  cannot  be  said  that  loss  of  profit  could  have  been  within 
the  contemplation  of  the  parties  when  the  lease  was  entered  into.*^* 
However,  it  has  been  held  that,  where  a  tenant  was  evicted  by  some 
act  that  amounted  to  a  trespass  on  the  part  of  the  landlord,  prospective 
profits  in  the  plaintiff's  business  during  the  balance  of  the  term  could 
be  made  an  item  of  recovery .*-^^  This  ruling  was  based  on  the  doc- 
trine that  anticipated  profits  could  be  recovered  as  damages  in  an 
action  of  trespass.*^® 

Where  a  new  lessee  seeks  to  recover  possession  and  damages  from  a 
former  lessee,  who  previously  had  a  term  in  the  premises,  the  amount 
of  his  recovery  is  not  limited  to  the  rent  reserved  in  the  new  lease 
during  the  period  which  the  former  tenant  occupies  but  he  may  re- 
cover the  reasonable  value  of  the  premises  to  him  during  that  period.*^^ 


IV.    In  Regard  to  Buildings  and  Improvements. 

§  372.    A  general  covenant  by  a  lessee  to  build  is  satisfied  by  an 
erection  of  the  building  at  any  time  before  the  end  of  the  term,  and 

the  lessor  before  the  expiration  of  the  term  can  have  no  legitimate 
cause  of  complaint.*^^  Where  the  lessee  covenanted  to  make  certain 
improvements,  it  was  held  he  had  the  whole  term  to  make  them,  if  no 
time  was  specified,  and  his  declarations  of  intention  were  imma- 
terial.*^^ So  an  agreement  by  a  lessee  to  clear  land  might  properly 
be  performed  any  time  during  the  continuance  of  the  lease  and  an 

«=  Guetzkow  Bros.  Co.  v.  Andrews,  land  &c.  R.  Co.  v.  Mitchell,  84   111. 

92  Wis.  214,  66  N.  W.  119;   Bradley  App.  206. 

V.  Chicago  M.  &   St.  P.  R.  Co.,   94         ^=*  Serfling  v.   Andrews,   106   Wis. 

Wis.  44,  68  N.  W.  410.  78,  81  N.  W.  991. 

"^  Kenny  v.  Collier,  79  Ga.  743,  8         '''  Snow  v.  Pulitzer,  142  N.  Y.  263, 

S.  E.  58;   Smith  v.  Phillips,  16  Ky.  36  N.  E.  1059. 

L.  R.  615;  Kelly  v.  Davis,  9  Ky.  L.         «« Schile  v.  Brokhahus,  80  N.   Y. 

R.    647;    Newbrough    v.    Walker,    8  614. 

Grat.  (Va.)  16;  Throop  v.  Broad-  •■"  Baldwin  v.  Skeels,  51  Vt.  121. 
dus,  15  Ky.  L.  R.  812;  Denny  v.  ^'^  Chipman  v.  Emeric,  5  Cal.  49. 
Marksbury,  15  Ky.  L.  R.  400;  Cleve-        ^=°  Palethorp    v.    Bergner,    52    Pa. 

St.  149. 


'^i 


405  IN   REGARD    TO   BUILDINGS   AND   IMPROVEMENTS.  [§373 

action  for  a  breach  of  the  agreement  could  not  be  maintained  until 
its  termination  without  the  fulfilment  of  the  undertaking.***'  But 
the  case  is  diiferent  where  the  covenant  by  the  lessee  is  to  build  within 
a  certain  time.  It  is  not,  then,  a  continuing  covenant.  There  is 
nothing  in  fhe  nature  of  a  covenant  to  build  by  a  given  time,  that  in- 
dicates that  a  continued  failure  to  perform  the  covenant  will  pro- 
duce a  succession  of  breaches.  It  more  clearly  resembles,  in  this  re- 
spect, the  covenant  not  to  assign,  or  for  a  reentry  in  case  of  the 
bankruptcy  of  the  lessee,  in  either  of  which  cases  the  breach,  if  it 
takes  place,  is  once  for  all.  So  the  receipt  of  rent  accruing  after  the 
end  of  the  time  given  for  building  would  be  a  waiver  of  the  for- 
feiture.**^ Furthermore,  in  case  the  lessee  is  under  obligation  to  build 
and  at  the  same  time  entitled  to  a  renewal  of  the  term,  the  fact  that 
he  is  allowed  to  hold  over  on  sufferance  without  building  does  not 
waive  the  lessor's  right  to  recover  damages  for  the  breach  of  the  cove- 
nant to  build,  and  the  lessee  does  not  have  the  right  to  complete  the 
addition  during  the  time  of  holding  over.**^  Where  a  tenant  cove- 
nanted to  build  and  leave  buildings  in  repair,  and  after  being  built 
they  were  destroyed  by  fire,  it  was  held  that  equity  would  compel 
the  lessee  either  to  rebuild  or  to  pay  the  value  of  the  buildings.**^ 

§  373.  In  the  absence  of  agreement  a  landlord  is  not  liable  for 
the  value  of  improvements  made  by  his  tenant  upon  the  demised 
premises.***  And  it  would  necessarily  follow  that  a  lessee  could  not 
recover  from  the  landlord  for  repairs  or  improvements  made  on  the 
premises  against  the  owner's  protest.**^  A  covenant  to  pay  for  im- 
provements erected  by  the  lessee  is,  however,  binding  on  the  lessor, 
and  if  he  is  acting  in  a  representative  capacity  and  had  no  authority 
to  make  such  a  covenant,  it  would  nevertheless  be  binding  on  him 
personally,  A  guardian's  covenant  to  purchase  improvements  at  an 
appraised  value  binds  him  absolutely,  and  he  cannot  refuse  to  submit 
to  a  valuation  unless  the  lessee  agrees  to  have  the  award  subject  to 

""Gates  v.  Hendrick,  54  Hun  (N.  672;    Hopkins    v.    Ratliff.    115    Ind. 

Y.)  92,  7  N.  Y.  S.  229.  213,  17  N.  E.  288;  Mull  v.  Graham, 

*«McGlynn  v.  Moore,  25  Cal.  384;  7  Ind.  App.  561,  35  N.  E.  134;  Guay 

Stuyvesant  v.  Mayor  &c.,  11  Paige  v.  Kehoe,  70  N.  H.  151,  46  Atl.  688; 

(N.  Y.)  414.  Sigur    v.    Lloyd,    1    La.    Ann.    421; 

"=Pollman    v.    Morgester,    99    Pa.  Kline    v.    Jacobs,    68    Pa.    St.    57; 

St.  611.  Smith    v.    Brown,    5    Rich.    Eq.    (S. 

"'Pasteur  v.  Jones,  Conf.  R.    (N.  Car.)   291. 
Car.)   194.  "=  Jones  v.  Hoard,  59  Ark.  42,  26 

***  Wilkerson  v.  Farnham,  82  Mo.  S.  W.  193,  43  Am.  St.  17. 


§•  373]  COVENANTS   IN  LEASES.  406 

the  approval  of  the  probate  court.**®  An  agreement  by  a  landlord  to 
pay  a  tenant's  predecessor  in  possession  for  the  building  on  the  land 
upon  termination  of  the  lease  may  be  enforced  in  a  proper  proceed- 
ing, but  it  does  not  operate  to  extend  the  tenancy  of  such  prede- 
cessor.**^ 

Under  the  law  of  landlord  and  tenant  the  doctrine  is  very  clear 
that  there  must  be  some  distinct  agreement  to  entitle  a  tenant  to  pay 
for  improvements  and  such  an  agreement  must  have  the  elements  of 
certainty  about  it.  It  must  be  equally  certain  with  any  other  contract 
of  employment.**^  The  tenant  is  presumed  to  repair  and  improve 
for  his  own  benefit;  and  his  only  right  to  the  fruits  of  his  labor,  ex- 
pended for  that  purpose,  is  to  enjoy  the  enhanced  value  of  the  prem- 
ises during  the  term,  and  within  certain  limitations  to  remove  the  im- 
provements before  its  expiration.  While  a  special  promise  on  the 
part  of  the  landlord  to  pay  for  improvements  might  be  implied  from 
his  conduct,  the  mere  fact  that  the  landlord  permits  the  tenant  to 
make  permanent  improvements  without  protest  or  warning  that  he 
will  not  pay,  raises  no  presumption  of  such  a  special  promise  to  pay 
for  improvements.**^  If  the  tenant  enlarges  the  building  for  his  own 
convenience,  even  though  it  be  by  the  persuasion  of  the  landlord,  he 
does  not,  in  the  absence  of  agreement  or  promise,  thereby  acquire  a 
right  to  charge  the  landlord  with  the  expense  of  the  improvements.*^" 
Provided  there  is  no  mistake  in  regard  to  the  nature  of  his  title,  a 
mere  tenant  at  will  or  tenant  from  month  to  month,  making  improve- 
ments without  the  request  of  his  landlord,  has  no  equity  against  his 
landlord  for  such  improvements  upon  an  abrupt  termination  of  his 
holding.*^^  Although  the  terms  of  a  lease  require  the  lessee  to  erect 
buildings,  if  there  is  no  agreement  for  their  removal  by  the  lessee, 
he  has  no  right  to  remove  them.*^^  Under  a  provision  that  improve- 
ments should  be  made  at  the  expense  of  the  tenant  and  that  the  ten- 
ant should  surrender  the  premises  to  the  lessor  at  the  end  of  the 

"'  Nichols  V.  Sargent,  125  111.  309,  «°  Hopkins  v.  Ratliff,  115  Ind.  213, 

17  N.  E.  475.  17    N.    E.    288;    Estep   v.    Estep,    23 

"'Almy  V.  Allen,  22  R.  I.  595,  48  Ind.  114;  Purcell  v.  English,  86  Ind. 

Atl.  934.  34,  44  Am.  R.  255;  Lucas  v.  Coulter, 

"'Leslie  v.    Smith,   32    Mich.    64;  104  Ind.  81,  3  N.  E.  622. 

"Wilson  V.   Scruggs,  7   Lea    (Tenn.)  "'' Pomeroy    v.    Lambeth,    1    Ired. 

635.  Eq.   (N.  Car.)   65. 

"«Gocio  V.  Day,  51  Ark.  46,  9  S.  «=  Peirce  v.  Grice,  92  Va.  763,  24 

W.  433;   Woolley  v.  Osborne,  39  N.  S.  E.  392. 
J.   Eq.   54;    Dunn  v.   Bagby,   88   N. 
Car.  91. 


i 


407  IX    REGARD   TO    BUILDINGS    AND   IMPROVEMEXTS.  [§    374 

term,  all  improvements  which  became  a  part  of  the  realty  belong  to 
the  landlord.*^^  By  a  stipulation  that  a  lessee  may  remove  all  im- 
provements he  may  erect,  he  contracts  as  to  the  mode  of  compensa- 
tion for  improvements  he  may  make,  and  it  would  follow  that  the 
lessor  in  no  other  mode  should  be  held  to  make  compensation.  If  the 
lessee  was  not  prevented  from  removing  his  improvements,  he  could 
not  set  off  the  value  of  them  when  sued  for  rent.*^*  A  provision  in  a 
lease  of  a  water  lot  that  all  improvements  erected  by  the  lessee  should 
become  the  property  of  the  lessor  at  the  end  of  the  term,  was  held 
to  cover  a  wharf  erected  by  the  lessee,  extending  beyond  the  limits 
of  the  lessor's  land  upon  tide  lands  not  owned  by  him,*^^  But  a  stip- 
ulation to  pay  for  improvements  and  repairs  to  wharves  made  by  the 
lessee,  binds  the  lessor  to  pay  their  value  as  contained  in  the  wharf, 
and  not  merely  their  value  as  second-hand  materials.*^^ 

§  374.  Authority  to  build. — The  erection  of  a  building  by  a  lessee 
not  authorized  by  the  lease  would  be  a  mere  voluntary  act  which  would 
furnish  no  consideration  for  and  give  no  right  to  a  renewal.  The 
authority  for  the  lessee  to  build  is  commonly  accompanied  by  an  obli- 
gation on  his  part  to  do  so.  However,  the  obligation  to  build  could  be 
discharged  by  a  release  and  yet  the  right  to  build  during  the  term  be 
preserved  so  that  the  lessee  having  built  became  entitled  to  the  exer- 
cise by  the  lessor  of  the  option  to  buy  or  renew  provided  by  the  lease. 
Striking  out  of  the  lease  the  covenant  of  the  lessee  to  build,  there  re- 
mains the  agreement  that  if  the  lessee  shall  build  and  the  building 
shall  be  standing  on  the  demised  premises  at  the  end  of  the  term,  the 
lessor  would  either  pay  the  appraised  value  or  renew  the  lease.*^^  In 
order  to  make  the  lessor  liable  for  the  cost  of  the  buildings  erected,  the 
lessee  must  comply  with  the  specifications  in  the  lease  as  to  the  char- 
acter and  cost  of  the  contemplated  structure.  This  is  the  necessary  con- 
struction of  such  a  contract.  JSTo  sane  man  would  make  a  contract  by 
which  he  would  incur  liabilities  unlimited  in  extent,  by  the  mere  acts 
of  agents  he  could  not  control.  The  lessee  was  bound  only  to  a  given 
extent  as  to  improvements;  his  will  and  that  of  the  lessor  met  as  to 
this  term;  the  obligations  were  reciprocal,  the  benefits  and  burdens 

*='Gett  V.  McManus,  47  Cal.  56.  «"  Ladd   v.   Hawkes,   41   Ore.   247, 

*"  Worthington   v.   Young,  8   Ohio     68  Pac.  422. 
401.  *=' Smith  v.  Rector  &c.,  107  N.  Y. 

*=^=  Brown  v.  Carkuk,  14  Wash.  443,  610,  14  N.  E.  825;  Mcintosh  v. 
44  Pac.  887.  Rector  &c.,   120   N.   Y.   7,   23   N.   E. 

984. 


§  375]  COVEXAXTS  IX  LEASES.  408 

equal,  and  the  terms  of  the  whole  contract  closed,  and  the  rights  of  the 
parties  liquidated  and  ascertained.  But  the  contrary  construction  sup- 
poses a  contract,  the  terms  and  results  of  which  are  uncertain.*^®  Sa 
where  a  covenant  in  a  lease  bound  the  lessor  to  pay  for  improvements 
erected  by  the  lessee,  the  general  words  of  the  covenant  were  limited 
by  a  specification  as  to  what  improvements  the  lessee  should  erect.  It 
was  clear  that  the  landlord,  although  he  agreed  to  pay  for  all  improve- 
ments placed  upon  the  lot,  had  reference  only  to  such  as  he  had  pre- 
viously authorized  to  be  made.  The  tenant  had  no  power  to  place  there 
what  he  pleased,  and  then  ask  compensation  for  them.  This  could 
never  have  been  the  intention  of  the  parties,  or  they  would  not  have 
previously  specified  the  buildings  the  tenant  might  erect.*^®  The  erec- 
tion of  a  difEerent  sort  of  buildings  puts  the  lessor  under  no  obligation 
to  pay  their  appraised  value  at  the  end  of  the  term.*^**  But  under  an 
agreement  in  a  lease  for  the  lessor  to  purchase  improvements  erected  by 
the  lessee  under  certain  conditions,  it  was  held  that  improvements 
erected  by  a  sub-tenant  must  be  considered  as  erected  by  the  tenant 
himself.*^^  A  tenant  is  entitled  to  be  allowed  for  improvements  which 
were  virtually  made  by  him.  Thus  where  a  tenant  claiming  to  be  an 
owner  gave  a  bond  for  title  and  the  vendee  entered  and  made  improve- 
ments, the  tenant  was  entitled  to  have  those  improvements  allowed 

him  according  to  his  contract  as  they  had  been  virtually  made  by 
him.^s^ 

A  lessor  cannot  countermand  an  authority  in  a  lease  for  the  lessee 
to  erect  buildings  which  are  to  be  paid  for  by  the  lessor.  The  lessee 
has  the  right  to  build  and  set  off  the  appraised  cost  against  the  rent, 
though  notified  by  the  lessor  not  to  do  so  and  that  it  would  not  be 
paid  for.*^^ 

§  375.  Rights  under  alternative  options. — Where  a  lease  for  a 
term  of  years  contains  a  covenant  on  the  part  of  the  lessor  that  at  the 
expiration  of  the  term  the  lessee  shall  be  paid  the  appraised  value  of 
the  building  or  a  new  lease  at  an  appraised  rent  shall  be  granted,  the 
lessee  at  the  expiration  of  the  term  is  entitled  to  retain  the  possession 
till  the  covenant  shall  be  performed  by  the  lessor.*^*    But  in  case  the 

*^  Woodward    v.    Payne,    16    Cal.  "« Wheeler  v.  Hill,  16  Me.  329. 

444.  *=- Williams    v.    Kinsman,    21    Me. 

«» Berry  v.  Van  Winkle,  2   N.   J.  521. 

Eq.  390.  *«3McVicker   v.   Dennison,   45   Pa. 

«» Mcintosh  V.  Rector  &c.,  120  N.  St.  390. 

Y.  7,  23  N.  E.  984;  Deishler  v.  Gol-  "*Van    Beuren    v.    Wotherspoon, 

baugh,  2  Ky.  L.  R.  231.  164  N.  Y.  368,  57  N.  E.  633. 


409  IN   REGARD   TO   BUILDINGS    AND   lilPROVEMENTS.  [§'   375 

covenant  for  a  landlord  to  pay  for  improvements  does  not  give  him  an 
alternative  right  to  grant  a  renewal,  the  tenant  is  not  entitled  to  con- 
tinue in  possession  of  the  premises  till  payment  is  made  or  tendered.*®^ 

Certain  rights  in  regard  to  the  removal  of  buildings  or  the  renewal 
of  the  term  may  be  conferred  upon  the  lessee  and  yet  the  lessor  be 
placed  under  no  obligation  to  purchase  improvements.  Thus  an 
alternative  provision  that  houses  erected  by  the  lessee  may  be  removed 
by  him  or  sold  to  the  lessor  at  a  certain  per  cent,  of  their  cost  is  not 
sufficient  to  support  an  action  against  a  lessor  for  refusal  to  pur- 
chase.'*^® Where  a  lease  provided  that  upon  its  expiration  or  if  lessee 
failed  to  perform  its  conditions,  the  lessor  might  purchase  lessee's 
property  at  appraised  valuation,  the  lessee  could  not  by  acts  that  en- 
titled the  lessor  to  declare  a  forfeiture  of  the  lease  compel  such 
purchase.*®^ 

However,  a  lessor,  who  has  promised,  in  consideration  of  a  lessee's 
making  improvements,  to  allow  him  to  continue  in  possession  as  long 
as  he  pays  a  stipulated  rent,  cannot  go  back  on  his  promise  without 
accounting  for  the  value  of  the  improvements.*®^  This  result  was 
reached  though  the  promise  was  by  parol  and  void  by  the  statute  of 
frauds.  It  nevertheless  constituted  a  valid  defense  in  an  action  by  the 
landlord  to  oust  his  tenant  from  the  premises.*®^  But  a  tenant  in  pos- 
session under  a  verbal  lease,  who  puts  permanent  and  valuable  im- 
provements on  the  land  under  a  promise  of  a  written  lease,  is  not  en- 
titled to  recover  the  value  of  such  improvements  merely  because  the 
landlord  refuses  to  execute  the  written  lease,  where  there  has  been  no 
eviction.*^" 

A  lease  with  mutual  covenants  for  an  appraisal  of  improvements 
contained  a  separate  covenant  by  the  lessor  to  renew  the  lease  or  pay 
for  the  building  at  the  lessee's  election,  but  no  covenant  on  the  part 
of  the  lessee  to  accept  a  new  lease  if  tendered.  On  this  state  of  facts 
the  court  applied  the  rule  that  a  covenant  will  not  be  implied  unless 
it  clearly  appears  from  the  words  used  that  one  was  intended.  Here 
was  a  covenant  by  the  lessor  only,  an  agreement  to  give  a  new  lease, 
but  there  was  none  by  the  lessee  to  accept  it.  If  it  had  been  intended 
to  bind  both,  or  to  impose  a  correlative  obligation  on  the  other,  a  clear 

*^Coatsworth  v.   Schoellkopf,  160         ^' Lewis    v.    Effinger,    30    Pa.    St. 

N.  Y.  114,  54  N.  E.  665,  reversing  37  281;   Brockway  v.  Thomas,  36  Ark. 

App.  Div.  295.  518. 

«' Anderson  V.  Swift,  106  Ga.  748,         *''=  Oneal    v.    Orr,    5    Bush    (Ky.> 

32  S.  E.  542.  649. 

«'  Kelly  v.  Chicago  &c.  R.  Co.,  93         '™  Yates  v.  Bachley,  33  Wis.  185. 
Iowa  436,  61  N.  W.  957. 


I  376]  COVENANTS  IX  LEASES.  410 

statement  should  have  been  made  not  only  that  one  would  give  but 
that  the  other  would  accept  a  lease.  So  the  court  held  that  the  tenant 
was  not  bound  to  accept  a  new  lease,  but  had  the  option  to  accept  one 
in  case  the  lessor  did  not  take  advantage  of  his  right  to  pay  for  the 
building.*^ ^  In  a  case  where  the  lessor  was  given  an  option  to  renew 
the  lease  instead  of  paying  for  improvements,  and  the  lessee  was  bound 
to  accept  the  renewal  term,  the  time  of  the  election  was  held  to  be  of 
the  essence.  So  the  lessor  was  required  to  declare  his  election  to  renew 
before  the  end  of  the  term  or  he  would  be  compelled  to  buy  the  im- 
provements.*'^^ Where  a  lessor  agrees  to  purchase  improvements  in 
case  the  lease  cannot  be  continued,  the  action  of  the  parties  in  continu- 
ing the  lease  forfeits  the  right  of  the  lessee  to  be  paid  for  the  improve- 
ments.*'^^ A  single  renewal  would  ordinarily  be  a  compliance  with 
the  option  to  buy  or  renew,  and  the  acceptance  of  a  renewal  lease  by 
the  lessee  would  constitute  a  waiver  of  any  further  rights  on  his  part 
in  regard  to  a  purchase  of  the  improvements  by  the  lessor.*'^*  This  held 
true,  although  the  renewal  was  for  a  short  term  and  the  renewal 
agreement  provided  that  the  lease  should  be  renewed  "with  all  its  con- 
ditions unchanged  and  unimpaired."*^^  Still  it  is  perfectly  possible 
to  provide  for  a  series  of  renewals  or  even  for  a  perpetual  renewal  in 
the  original  agreement.*'^^ 

§  376.  Improvements  as  part  of  realty. — A  building  constructed 
upon  land  by  the  lessee  thereof  under  an  agreement  whereby  the  lessor 
was  to  pay  the  cost  of  the  materials  upon  the  termination  of  the  lease, 
and  the  building  was  to  remain  upon  the  land,  becomes  a  part  of  the 
realty  upon  forfeiture  by  failure  to  pay  rent.*"  A  provision  for  re- 
newal of  the  kind  under  consideration  does  not  prevent  the  lessor  from 
terminating  the  lease  for  non-payment  of  rent  according  to  authority 
conferred  by  a  clause  in  the  lease.  In  such  an  event  the  lessee  has  no 
claims  under  the  alternative  provision  that  the  lessor  shall  buy  the 
improvements  at  an  appraised  value  unless  he  renews  the  lease.  The 
legal  title  to  the  building .  belongs  to  the  lessor.     The  well-settled 

^^^Zorkowski  v.   Astor,  156  N.   Y.  "'*  Peirce  v.  Grice,  92  Va.  763.  24 

393,  50  N.  E.  983;   Bruce  v.  Fulton  S.  E.  392. 

Nat.  Bank,  79  N.  Y.  154;    Booth  v.  *"=  Kash  v.  Huncheon,  1  Ind.  App. 

Cleveland  &c.  Co.,  74  N.  Y.  15;  Hud-  361. 

son  Canal  Co.  v.  Pennsylvania  Coal  ^^«Kutter   v.    Smith,   2   Wall.    (U. 

Co.,  8  Wall.  (U.  S.)  276.  S.)    491,  17  L.  Ed.  830. 

"=  Bullock    V.    Grinstead,    95    Ky.  ""  Switzer  v.  Allen,  11  Mont.  160, 

261,  24  S.  W.  867.  27  Pac.  408. 

"'Parker  v.  Page,  41  Ore.  579,  69 
Pac.  822. 


411  IN    REGARD    TO    BUILDIXGS    AND   IMPROVEMENTS.  [§    377 

rule  is  that  such  erections  become  a  part  of  the  land  as  each  stone  or 
brick  is  fastened  to  the  structure.  The  contract  in  question  here 
does  not  change  this  rule.  The  agreement  to  purchase  means  nothing 
more  than  that,  in  a  certain  event,  the  lessor  will  pay  the  lessee  the 
value  of  the  building,  but  there  is  no  implication  of  any  general  title 
or  ownership  in  the  lessee  apart  from  that  event.  This  contingency 
has  not  occurred,  and  that  it  can  never  occur  is  the  fault  of  the  lessee. 
In  regard  to  the  supposed  hardship  of  taking  the  building  without 
compensation,  the  reply  is  that  it  is  from  the  lessee's  own  fault  that 
this  right  arises.^^*  Under  a  provision  that,  if  the  lessor  did  not  ex- 
ercise an  option  to  buy  improvements  at  an  appraised  value,  the  lessee 
might  remove  them,  the  building  was  annexed  to  the  land  as  part  of 
the  realty,  and  the  interest  of  the  lessee  in  each  was  a  chattel  real.  If, 
at  the  expiration  of  the  term  the  lessor  did  not  buy  the  building,  the 
lessee's  right  to  remove  would  arise  and  the  building  would  become  a 
mere  chattel.*^^ 

An  agreement  in  a  lease  that  all  buildings  should  belong  to  the 
lessee,  and  that  he  could  remove  them  at  the  end  of  the  term,  does 
not  prevent  him  from  removing  them  at  any  time  during  the  term  if 
he  wishes.*^**  A  permit,  authorizing  a  lessee  to  erect  a  building  upon 
the  leased  premises  and  allowing  him  "to  take  away  or  sell  upon  the 
ground,  said  building  so  erected  at  his  own  expense,  at  the  termina- 
tion of  said  lease"  limits  the  right  to  tal-e  away  the  building,  but  not 
the  right  to  sell  it.  After  such  building  becomes  the  property  of  a 
third  person,  the  cancelling  of  the  lease  cannot  affect  his  rights ;  but 
he  may  take  it  away  at  the  end  of  the  term  for  which  the  lease  was 
originally  given. *^^ 

§  377.  Such  covenants  run  with  the  land.  In  accordance  with 
the  general  rule  regarding  the  running  of  covenants,  an  undertaking 
by  the  lessor  to  pay  the  value  of  improvements  on  the  expiration  of 
the  term  runs  with  the  land  and,  the  right  to  enforce  such  payment 
passes  to  the  purchaser  of  the  leasehold  estate  as  incident  to  the 
term.*^2     ^^^  a^  lessee  covenanted  to  erect  buildings  upon  a  demised 

*'«Kutter   V.    Smith,   2    Wall.    (U.  "» Adams  v.  Goddard,  48  Me.  212. 

S.)   491,  17  L.  Ed.  830;   Newhoff  v.  «=  Stockett    v.     Howard,    34    Md. 

Mayo,  48  N.  J.  Eq.  619,  23  Atl.  265;  121;   Hunt  v.  Danforth,  2  Curt.  592, 

Paine  v.  Trinity  Churcti,  7  Hun  (N.  12   Fed.   Cas.   No.   6887;    Woodward 

Y.)   89.  V.    Payne,    16    Cal.    444,    §    332.     A 

"'Newhoff  V.  Mayo,  48  N.  J.  Eq.  contrary  result  was  reached  in  Pe- 

619,  23  Atl.  265.  terson  v.  Haight,  1  Miles   (Pa.)  250, 

*'"  Alexander   v.    Touhy,    13    Kan.  on   the   ground   that   ther3   was   no 

64.  privity  of   contract  between   a  sec- 


§  377]  COVENANTS  IN  LEASES.  412 

lot,  not  only  the  lessee,  but  the  assignee  and  the  executors  of  the  as- 
signee, would  have  been  liable  in  an  action  for  a  breach  of  the  covenant. 
If  the  assignee  would  be  liable  on  such  a  covenant,  surely  he  must  have 
a  right  of  action  for  the  violation  of  a  corresponding  covenant  on  the 
part  of  the  lessor.**^  But  the  covenant  would  not  run  unless  assigns 
were  expressly  named  and  in  that  event  an  action  for  the  value  of  the 
improvements  must  be  brought  in  the  name  of  the  original  lessee.  The 
subject  of  the  covenant  was  not  in  esse  at  the  date  of  the  lease.  It 
was  to  pay  for  buildings  to  be  erected,  not  to  repair  existing  build- 
ings.*** So  it  has  been  held  that  a  covenant  on  the  part  of  a  lessor  that 
at  the  end  of  the  term  he  will  pay  the  lessee  the  appraised  value  of 
the  improvements  placed  thereon  by  the  latter,  is  not  one  that  runs 
with  the  land  and  is  not  enforceable  against  a  grantee  of  the  lessor.**^ 
But  if  covenants  are  reciprocal  and  assignees  are  expressly  mentioned 
there  seems  to  be  no  valid  reason  why  the  assignee  of  a  lessor  should  not 
be  bound  by  a  covenant  to  purchase  improvements  or  new  buildings.*®* 
The  case  would  be  different  where  there  was  no  covenant  on  the  part 
of  the  lessee  to  improve.  A  covenant  to  run  with  the  land  must  touch 
and  concern  it  and  it  is  difficult  to  see  how  a  covenant  to  pay  a  pecuni- 
ary consideration  for  a  house,  if  the  tenant  shall  think  proper  to  erect 
it,  can  be  said  to  touch  and  concern  the  land.*®^  Where  the  right  to 
terminate  a  lease  was  conditional  upon  the  payment  of  the  lessee  for 
improvements  erected  by  him,  the  sum  could  be  paid  into  court  in  case 
the  lease  had  been  assigned  and  it  was  not  necessary  for  the  lessor  to 
decide  whether  the  lessee  or  his  assignee  was  entitled  to  the  sum  thus 
paid.  Payment  into  court  was  sufficient  to  establish  the  right  to  ter- 
minate the  lease.**®  Where  the  value  of  improvements  has  been  paid 
to  a  lessee  with  no  notice  of  an  assignment,  a  bill  brought  by  an  as- 
signee of  the  lease,  more  than  a  year  after  it  has  expired,  to  recover 
the  value  of  improvements,  cannot  be  maintained.*®^  It  is  a  question 
of  intention  as  to  whether  the  lessee  intends  to  transfer  his  contractual 
rights  to  remove  structures  by  an  assignment  of  the  leasehold  estate. 

ond  assignee  of  the  lease  and  the  111.  App.  386;   Bream  v.  Dickerson, 

original  landlord.  2  Humph.   (Tenn.)   126. 

*"  Lametti    v.    Anderson,    6    Cow.  *^^  Frederick  v.  Callahan,  40  Iowa 

(N.  Y.)  302;  Spencer's  Case,  5  Coke  311;   Ecke  v.  Fetzer,  65  Wis.  55,  26 

16.  N.  W.  266. 

^**  Thompson  v.  Rose,  8  Cow.    (N.  *"  Bream  v.  Dickerson,  2  Humph, 

Y.)  266.  (Tenn.)    126. 

^'Tallman  v.  Coffin,  4  N.  Y.  134;  ^' Estabrook  v.  Stevenson,  47  Neb. 

Hansen    v.    Meyer,    81    111.    321,    25  206,  66  N.  W.  286. 

Am.  R.  282;  Watson  v.  Gardner,  119  "' Cronin  v.  Watkins,  1  Tenn.  Ch. 

111.  312,  10  N.  E.  192,  affirming  18  119. 


413  IN   REGARD   TO    BUILDINGS    AND   IMPROVEMENTS.  [§    378 

If  the  intention  of  the  parties  by  the  assignment  is  to  transfer  the  own- 
ership of  the  buildings,  an  alternative  contract  by  the  lessor  to  pur- 
chase passes  with  it  to  the  assignee.*^'' 

§  378.  Mechanics'  liens  for  improvements. — A  lessor  who  stipu- 
lates in  his  lease  for  the  erection  by  the  lessee  of  a  building  upon  the 
demised  premises,  which  is  to  become  the  property  of  the  lessor  upon 
the  termination  of  the  lease  by  expiration  or  otherwise  subjects  his 
title  to  mechanics'  liens  arising  from  the  erection  of  the  building. 
This  is  true  notwithstanding  the  lease  provides,  under  penalty  of  for- 
feiture, that  the  lessee  shall  permit  no  mechanics'  liens  to  attach  to  the 
premises.*^ ^  If  the  improvements  were  made  and  the  material  fur- 
nished under  a  contract  authorized  by  the  lessor,  he  must  be  held  to 
have  subjected  his  title  in  the  premises  to  the  builder's  lien,  if  the  lien 
is  otherwise  valid.*^^  The  improvements  were  to  become  the  property 
of  the  lessor  at  the  termination  of  the  lease.  In  this  state  of  the  facts 
it  may  be  truthfully  said  that  the  improvements  on  the  lot  and  the  ma- 
terials necessary  to  make  them,  were  made  and  furnished  by  his  con- 
sent and  for  his  benefit.  He  not  only  consented  to  them,  but  con- 
tracted with  his  lessees  for  them.*®^  According  to  this  view  the  lien 
attaches  to  the  whole  of  the  property, — the  owner's  title.  It  is  his  con- 
tract, not  that  of  the  lessee's, — and  he  gets  the  full  benefit  of  it.  A 
provision  in  a  ninety-nine  year  lease  at  an  annual  rent  that  the  lessor's 
interest  in  a  building  to  be  erected  on  the  premises  as  a  joint  enterprise 
of  the  parties  shall  be  exempt  from  mechanics'  liens  is  void,  as  being 
an  attempt  to  set  aside  the  law  of  the  land.  The  parties  here  were 
acting  together  in  the  construction  of  the  building.  Each  was  inter- 
ested in  it  and  within  the  meaning  of,  the  mechanics'  lien  law  they 
were,  as  to  those  who  should  furnish  labor  or  material  in  the  construc- 
tion of  the  building,  owners  of  the  building."*^*  Even  under  mechan- 
ic's lien  statutes  without  a  provision  including  those  whom  "such 
owner  has  knowingly  permitted  to  improve,"  etc.,  the  result  would  be 

""California   Ann.    Conference   v.  N.  W.  294;   Henderson  v.  Connelly, 

Seitz,  74  Cal.  287,  15  Pac.  839.  123  111.  98,  14  N.  E.  1;    Carey-Lom- 

"'  Carey-Lombard   Lumber   Co.   v.  bard  Lumber  Co.  v.  Jones,  187   111. 

Jones,  187  111.  203,  58  N.  E.  347,  re-  203,  58  N.  E.  347,  reversing  87   111. 

versing  87  111.  App.  533.  App.  533. 

"^O'Leary   v.    Roe,    45    Mo.    App.  *^' Gruner  Lumber  Co.  v.   Nelson, 

567;  Hall  v.  Parker,  94  Pa.  St.  109;  71  Mo.  App.  110. 

Barclay  v.  Wainwright,   86  Pa.   St.  "*  Crandall  v.  Sorg,  198  111.  48,  64 

191;    Burkitt  v.    Harper,    79    N.    Y.  N.    E.    769,    reversing    99    111.    App. 

273;   Hill  v.  Gill,  40  Minn.  441,  42  22. 


§  379]  COVENANTS  IN  LEASES.  414 

the  same  and  the  doctrine  is  fully  sustained  by  numerous  decisions.*^" 
The  cases  which  hold  that  a  lessee  who  is  authorized  to  make  repairs 
or  improvements  on  the  premises  cannot  create  a  lien  against  his  les- 
sor, stand  on  the  ground  that  a  lien  is  created  on  the  estate  of  the  les- 
see under  the  statute  and  the  statute  cannot  be  construed  to  give  at 
the  same  time,  under  such  circumstances,  a  lien  against  the  estate  in 
reversion.^^®  In  one  case  the  agreement  for  building  took  the  form 
that  the  lessor  agreed  to  pay  to  the  lessee  a  gross  sum  toward  the  erec- 
tion of  a  house  on  the  demised  premises.  It  was  held  that  the  rever- 
sionary interest  of  the  lessor  was  bound  by  the  mechanics'  lien  against 
the  premises.*®'^ 

Nevertheless,  the  estate  of  the  lessor  cannot  be  subjected  to  a  lien  for 
work  done  or  material  furnished  under  a  contract  with  the  lessee,  un- 
less the  agreement  or  consent  of  the  lessor  is  shown,  or  unless  he  has 
done  some  act  to  make  his  estate  liable.  A  statute  which  confers  a 
lien  upon  the  leasehold  interest,  must  be  construed  with  reference  to 
the  common-law  rule,  that  the  burden  of  repairs  is  cast  upon  the  ten- 
ant and  that  the  landlord  is  under  no  implied  obligation  to  make 
them.^^s 

A  landlord  who  leases  property  with  a  condition  that  certain  im- 
provements are  to  be  made  in  lieu  of  rent,  is  not  bound  for  the  debts 
of  his  tenant  contracted  in  making  those  improvements.*^"  A  re- 
quirement that  a  lessee  shall  "put  cash  in  repairs"  to  a  certain  amount 
does  not  confer  a  right  of  charging  such  repairs  against  the  landlord 
or  his  property  by  means  of  a  mechanic's  lien.^^'^  Nor  could  the  land- 
lord be  charged  on  such  a  lien  by  reason  of  allowing  the  tenant  to  de- 
duct the  cost  of  repairs  from  the  rent.^''^ 

§  379.  Proceedings  for  appraisal. — In  no  case  where  a  provision 
for  the  appraisal  of  permanent  improvements  is  made  is  it  contem- 
plated that  evidence  or  the  statement  of  the  parties  should  be  heard, 
but  the  appraisers  are  merely  to  examine  the  property  and  use  their 

«=  Miller  v.  Mead,  127  N.  Y.  544,  40  Pa.  St.  63;   Boteler  v.  Espen,  99 

28  N.  E.  387;  Schmalz  v.  Mead,  125  Pa.  St.  313. 

N.  Y.  188,  26  N.  E.  251;  Burkitt  v.        *'«  2  Jones  on  Liens,  §  1276;  Miller 

Harper,  79  N.  Y.  273.  Lumber  Co.  v.  Wilson,  56  Ark.  380, 

"«McCue  v.  Whitwell,   156   Mass,  19  S.  W.  974. 
203,    30    N.     E.    1134;     Francis    v.         ^^^  Jones  v.  O'Farrel,  1  Nev.  354. 
Sayles,    101    Mass.    435;    Conant   v.         ^o"  Schrage  v.  Miller,  44  Neb.  818, 

Brackett,  112  Mass.  18.  62  N.  W.  1091. 

"'Williams  v.  Vanderbilt,  145  111.         =°^  Boone  v.  Chatfield,  118  N.  Car. 

238,  34  N.  E.  476;  Leiby  v.  Wilson,  916,  24  S.  E.  745. 


415  IN   KEGAED   TO   BUILDINGS    AND    IMPROVEMENTS.  [§    379 

own  Judgment  in  determining  value.  There  is  no  dispute  to  be  settled 
or  trial  to  be  had,  as  is  the  case  where  there  is  an  arbitration  and  award. 
Where  a  proceeding  is  an  arbitration,  it  is  necessary  that  a  time  and 
place  should  be  fixed  for  a  hearing, — that  the  parties  should  receive 
notice,  in  order  that  they  might  appear  and  introduce  their  evidence 
and  make  their  statements  before  the  arbitrators.  But  nothing  of  this 
kind  is  required  in  a  case  of  this  character,  No  evidence  is  to  be  heard. 
The  appraisers  ascertain  such  facts  as  may  have  a  bearing  on  the  value 
of  the  improvements,  in  their  own  way,  and  act  upon  their  own 
judgment.^"^ 

In  regard  to  the  time  at  which  the  valuation  of  the  improvements 
should  be  made,  they  must  be  valued  as  they  were  at  the  time  the  lease 
expired.  The  lease  contemplates  a  settlement  of  this  whole  question 
at  its  expiration ;  then  it  is  that  the  buildings  are  to  be  examined  and 
a  final  adjustment  made.  Everything  looks  to  that  time.^"^ 

A  mere  agreement  for  appraisal,  though  binding  on  the  parties,  is 
not  a  submission  to  arbitration,  and  is  not  subject  to  the  same  rules.^"* 
The  appraisers  chosen  by  the  parties  to  make  such  appraisal  are  not 
arbitrators  within  a  statutory  provision  requiring  arbitrators  to  be 
sworn.^"^  The  distinction  between  appraisal  and  arbitration  is 
brought  out  in  the  rule  laid  down  in  regard  to  the  necessity  of 
notice  to  the  parties  of  the  meeting  of  the  persons  selected  to  make 
the  decision.  The  approved  rule  is  that  "unless  the  submission  ex- 
pressly shows  that  the  parties  intended  that  the  arbitrators  should  de- 
cide the  questions  in  dispute  without  the  aid  or  presence  of  the  parties, 
or  it  is  evident  that  such  was  the  intention,  as  tvliere  the  matter  is 
merely  one  of  appraisal,  the  arbitrators  must  give  both  parties  notice 
of  the  time  and  place  of  meeting,"^"^  But  in  case  the  appraisers  had 
to  construe  the  contract,  and  determine  its  meaning  before  they  could 
determine  what  value  should  be  set  upon  the  building  it  was  held  that 
notice  of  the  meeting  of  the  appraisers  should  be  sent  to  the  parties. 
The  argument  for  this  requirement  is  that  the  appraisers  were  not 
merely  to  determine  the  simple  matter  of  the  value  of  specific  prop- 
erty, but,  necessarily,  to  construe  the  contract  and  determine  its  legal 
effect.    In  such  a  case  the  parties  had  the  same  right  to  be  heard  before 

^'  Pearson  v.   Sanderson,   128   111.  ^^^  Pintard   v.   Irwin,   20   N.   J.   L. 

88,  21   N.  E.   200,  affirming,   28   111.  497. 

App.  571.  ''"'Wood  V.  Helme,  14  R.  I.  325. 

^°' Berry  v.  Van  Winkle,   2   N.   J.  ^"Janney  v.  Goehringer,  52  Minn. 

Eq.  390.  428,  54  N.  W.  481. 

""^  California    Annual    Conference 
V.  Seitz,  74  Cal.  287,  15  Pac.  839. 


§    380]  COVEITANTS   IN"  LEASES.  41G 

their  cause  was  adjudged  as  they  would  have  in  any  general  arbitra- 
tion.^*'^ In  one  case  in  N"ew  York  the  distinction  between  an  appraisal 
and  arbitration  was  rejected  in  its  entirety.  ^•'^ 

In  case  the  parties  did  not  concur  in  the  appointment  of  appraisers, 
but  all  the  appraisers  were  appointed  by  one  party,  their  finding  would 
not  be  final,  but  the  question  of  damages  would  be  decided  by  the 
j^py  509  However,  if  the  parties  cannot  agree  upon  an  appraisement 
or  upon  the  appointment  of  appraisers  according  to  the  provisions 
of  the  deed,  it  has  been  held  that  appraisers  might  be  appointed  for 
the  purpose  by  the  court.  ^^"^ 

§  380.  Restraints  upon  building. — ^A  covenant  by  a  lessee  that  he 
will  make  no  alteration  or  addition  to  the  buildings  or  to  the  premises 
themselves  is  broken  by  the  erection  of  a  wooden  structure  which  might 
be  removed  as  a  trade  fixture  before  the  expiration  of  the  term.  The 
fact  that  it  could  be  removed  without  leaving  any  permanent  traces 
that  it  had  ever  been  on  the  premises  would  not  affect  the  matter. 
The  same  argument  might  be  advanced  of  a  building  erected  of  more 
permanent  materials.  It  was  a  building,  and  not  a  mere  covered  box. 
If  it  had  been  placed  there  by  the  owner  of  the  fee,  it  would  have  be- 
come a  part  of  the  realty,  and,  therefore,  it  was  an  addition.^  ^^ 

But  a  covenant  in  a  lease  "that  no  alteration  or  addition  shall  be 
made  during  the  term  of  the  lease  in  or  to  the  premises  without  the 
consent  of  the  lessors,"  does  not  relieve  the  lessees  from  liability  for 
injuries  resulting  to  a  third  person  from  want  of  repair  of  the  premi- 
ses. It  was  contended  for  the  lessees  that  they  had  no  legal  right  to  rem- 
edy the  defect,  and,  therefore,  were  not  responsible  for  it  because  their 
lease  provided  that  no  alteration  or  additions  should  be  made  by  them. 
But  the  court  held  that  the  repairing  of  a  defect  was  not  an  alteration 
or  an  addition  within  the  meaning  of  the  lease.    In  any  case  a  covenant 

^*Van  Cortlandt  v.  Underbill,  17  to   become  tbe   appraisers;    and   by 

Johns.    (N.  Y.)   405,  Spencer,  C.  J.,  whatever  name  they  are  called  they 

said:    "Notwithstanding  the  ingeni-  were  substantially  arbitrators,  with 

ous    distinctions   made   between   an  plenary   power  to   decide   upon   the 

appraisement,   under  an  agreement  subject    of    difference    between    the 

entered  into  many  years  before  the  parties." 

appraisement    takes    place    and    an  ^°^  Holliday  v.  Marshall,  7  Johns, 

ordinary  submission  to  arbitration,  (N.  Y.)  211. 

I  confess  that  I  do  not  feel  the  force  ""  City  of  Providence  v.  St.  John's 

of  these  distinctions.     It  makes  no  Lodge,  2  R.  I.  46. 

difference    when    the    contract    was  "*  Whitwell   v.   Harris,   106   Mass. 

made.     It  took  its  effect  from  the  532. 
mutual  agreement  as  to  the  persons 


I 


417  IX    REGARD   TO    BUILDINGS    AND   IMPROVEMENTS.  [§    381 

to  continue  a  nuisance  would  not  exonerate  them  from  liability  to 
third  persons.^  ^^  In  order  to  constitute  a  breach  of  such  an  agree- 
ment, the  structure  must  be  on  the  leased  premises.  In  holding  the 
erection  of  a  building  upon  an  adjacent  lot  was  not  a  breach  of  a  cov- 
enant not  to  make  alterations  without  the  landlord's  written  consent, 
it  was  said :  "The  tenant  has  made  no  alteration  in  the  building  leased 
to  him  by  anything  done  directly  to  that  building."  The  tenant  alone 
is  injured  by  the  shutting  off  of  light  and  air,  if  it  be  an  injury,  and  he 
alone  has  a  right  to  complain  of  it.^^^ 

A  recital  of  the  purpose  for  which  leased  premises  are  to  be  used  has 
been  held  to  restrict  the  kinds  of  buildings  which  may  be  erected  upon 
them;  so  that  an  injunction  would  be  granted  against  the  erection 
of  buildings  of  a  different  character,  for  they  indicated  an  intention 
to  put  the  premises  to  a  use  forbidden  by  the  terms  of  the  lease.^^* 

§  381.     Tenant's  right  to  light  and  air  against  landlord. — The 

prevalent  rule  in  the  United  States  is  that  an  easement  in  the  un- 
obstructed passage  of  light  over  an  adjoining  close  cannot  be  acquired 
by  prescription.^^^  A  grant  of  the  right  to  the  use  of  light  and  air 
will  not  be  implied  from  the  conveyance  of  a  house  with  windows  over- 
looking the  land  of  the  grantor.  ^^*'  The  law  of  implied  grants  and  im- 
plied reservations,  based  on  necessity  or  use  alone,  is  not  to  be  applied 
to  easements  for  light  and  air  over  the  premises  of  another.^^^  It  fol- 
lows, that  a  landlord  will  not  be  liable  for  obstructing  his  tenant's 
windows  by  building  on  an  adjoining  close,  in  the  absence  of  any 
covenant  or  agreement  in  the  lease  forbidding  him  to  do  so.^^^    But 

""City  of  Boston  v.  Worthington,  Keating  v.  Springer,  146  111.  481,  34 

10  Gray    (Mass.)    496.  N.   E.    805;    Mullen  v.   Strieker,   19 

''"Atkins     v.     Chilson,     9     Mete.  Ohio    St.    135;     Morrison    v.    Mar- 

(Mass.)    52.  quardt,  24  Iowa  35;  Palmer  v.  Wet- 

"*  Kraft  V.  Welch,  112   Iowa  695,  more,  2  Sandf.   (N.  Y.)   316;   Myers 

84  N.  W.  908.  V.   Gemmel,   10  Barb.    (N.   Y.)    537. 

"=  Keating    v.    Springer,    146    111.  Contra,  Janes  v.  Jenkins,  34  Md.  1; 

481,  34  N.  E.   805;    Guest  v.  Reyn-  Lampman   v.   Milks,   21   N.   Y.   505, 

olds,  68  111.  478,  overruling  Gerber  512  (semble). 

v.  Grabel,  16  111.  217;  Keats  v.  Hugo,  "^Mullen  v.  Strieker,  19  Ohio  St. 

115  Mass.  204;    Mullen  v.   Strieker,  135;   Haverstick  v.  Sipe,  33  Pa.  St. 

19  Ohio  St.  135,  142;  Pierre  v.  Fer-  368;   Keiper  v.  Klein,  51  Ind.  316. 

nald,   26    Me.    436;    Napier   v.    Bui-  "'Keating    v.    Springer,    146    111. 

winkle,   5  Rieh.   L.    (S.   Car.)    311;  481,  35  N.  E.  805;  Myers  v.  Gemmel, 

Cherry   v.    Stein,    11    Md.    1;    Hub-  10   Barb.    (N.    Y.)    537;    Palmer   v. 

bard    v.    Town,    33   Vt.    295;    "Ward  Wetmore,    2    Sandf.     (N.    Y.)    316; 

V.  Neal,  37  Ala.  500,  §  359.  Keiper  v.  Klein,  51  Ind.  316, 

"^  Keats  V.  Hugo,  115  Mass.  204; 
Jones  L.  &  T.— 27 


§'  382]  COVENANTS  IN  LEASES.  418 

the  authorities  all  agree  that  the  right  to  have  the  light  and  air  enter 
the  windows  of  a  building  over  an  adjoining  lot  may  exist  by  express 
grant,  or  by  virtue  of  an  express  covenant  or  agreement.  ^^^  So  a  cov- 
enant by  a  lessor  not  to  build  on  a  close  adjoining  the  demised  prem- 
ises is  binding  on  him,  and  a  breach  of  it  constitutes  a  constructive 
eviction  which  justifies  an  abandonment  of  the  premises  by  the  tenant. 
But  the  tenant  is  still  bound  for  the  rent  if  he  continues  to  occupy 
the  premises.^^"  Though  the  tenant  will  not  be  allowed  to  plead 
eviction  as  a  bar  to  the  recovery  of  rent,  yet  he  is  not  for  that  reason 
without  remedy.  In  those  states  where  the  doctrine  of  recoupment 
is  recognized,  he  may  recoup  such  damages  as  he  may  have  sustained 
by  reason  of  the  acts  of  the  landlord,  against  the  rent  sought  to  be  re- 
covered.^^^  The  injury  grows  out  of  the  same  transaction  as  the  claim 
for  rent,  and  recoupment  is  clearly  applicable. 

V.    Restricting  Use  of  Premises. 

§  382.  Validity  of  restrictions. — A  lessee  has,  by  implication,  the 
right  to  possess  and  enjoy  the  property  during  the  term  specified,  and 
to  put  it  to  such  use  and  employment  as  he  pleases,  not  materially  dif-  it 
ferent  from  that  in  which  it  is  usually  employed,  to  which  it  i& 
adapted,  and  for  which  it  was  constructed.^-^  But  the  mode  of  use 
may  be  restricted  by  express  agreement,  a  lessee  having  no  right  to  de- 
vote the  premises  to  a  use  other  than  that  stipulated  in  the  lease  with- 
out the  consent  of  the  owner.  In  the  absence  of  express  prohibition,, 
offices  rented  for  real  estate  business  could  be  used  by  a  constable 
without  a  breach  of  the  covenant.^^^  A  landlord  may  by  contract  law- 
fully restrict  his  tenant's  use  of  the  property,  and,  in  case  of  such  an 
agreement,  if  the  latter  use  the  demised  premises  for  a  purpose  pro- 
hibited by  the  lease,  it  is  a  breach  of  the  agreement  for  which  the  law 
affords  relief.^ ^*     A  covenant  in  a  lease  that  the  lessee  shall  sell  no 

"'Hilliard    v.    Gas    Coal    Co.,    41  481,  34  N.  E.  105;  Lindley  v.  Miller^ 

Ohio  St.   662;    Brooks  v.   Reynolds,  67   111.   244;    Lynch  v.   Baldwin,   69 

106  Mass.  31;   Keating  v.  Springer,  111.  210;    Pepper  v.  Rowley,  73   111. 

146  111.  481,  34  N.  E.  805;   Keats  v.  262. 

Hugo,   115   Mass.   204;    Morrison  v.  "=  Nave    v.    Berry,    22    Ala.    382; 

Marquardt,  24  Iowa  35.  Bucklen   v.   Cushman,   145   Ind.   51, 

"^=°Skally  V.  Shute,  132  Mass.  367;  44  N.  E.  6;   Reed  v.  Lewis,  74  Ind. 

Chicago  &c.  Co.  v.  Browne,  103  111.  433,  39  Am.  R.  88. 

317;  Edgerton  v.  Page,  20  N,  Y.  281,  ==*  White    v.    Kane,    53    Mo.    App. 

284.  300. 

"» Keating   v.    Springer,    146    111.  "^Haywood    v.    Ramge,    33    Neb. 


419  EESTRICTING   USE   OF   PREMISES.  [§    382 

beer  upon  the  leased  premises  except  that  manufactured  by  a  certain 
brewing  company  may  be  enforced  by  the  company  for  whose  benefit 
the  contract  is  made,  although  the  company  is  not  a  party  thereto.  A 
covenant  by  a  lessee  not  to  carry  on  a  particular  business,  or  not  to 
carry  on  any  business  except  a  business  named,  on  the  leased  premises, 
is  binding  and  may  be  enforced. ^^^  It  has  been  uniformly  held  that  a 
provision  in  a  deed  that  no  intoxicating  liquors  shall  be  manufactured 
or  sold  on  the  premises  conveyed  is  valid,  however  much  the  same  may 
affect  the  value  of  the  property  conveyed.^^®  "It  will  not  be  doubted," 
said  Judge  Cole,  of  the  Wisconsin  court,  "that  the  landlord,  having  the 
jm  disponendi,  may  annex  whatever  conditions  he  pleases  to  his  grant, 
provided  they  be  neither  contrary  to  law  nor  the  principle  of  reason  or 
public  policy."^^^ 

A  lessor  may  bind  himself  by  a  contemporaneous  parol  agreement, 
made  in  consideration  of  the  execution  of  the  lease,  not  to  engage  in 
a  rival  business  in  the  same  city;  and  in  an  action  by  the  lessee  for 
damages  and  for  injunctive  relief,  parol  evidence  of  the  agreement  is 
competent.^ ^*  Such  a  promise  not  to  engage  in  a  rival  business  is  not 
void,  because  not  in  writing.°^^  A  restrictive  covenant  in  a  lease  of 
offices  to  a  telegraph  company,  that  during  the  term  the  lessor  will 
not  lease  offices  in  the  building  to  any  other  telegraph  company  for 
use  as  a  telegraph  office  without  the  consent  of  the  lessee,  will  not  pre- 
vent another  telegraph  company,  subsequently  purchasing  the  fee  sub- 
ject to  existing  leases,  from  using  the  building  for  its  own  offices.  The 
covenant  does  not  place  any  restriction  on  the  use  of  the  building 
further  than  an  inhibition  against  leasing  for  a  telegraph  office,  and  a 
court  cannot  interpolate  into  that  contract  something  it  does  not  con- 
tain and  make  it  apply  to  the  use  of  the  building  instead  of  the  leasing 
to  another.^^" 

836,  51  N.  W.  229;  Steward  v.  Win-  Barrie,  56  Mich.  314,  22  N.  W.  816; 

ters,    4    Sandf.    Ch.     (N.    Y.)    587;  Sutton  v.  Head,  86  Ky.  156,  5  S.  W. 

Dodge  V.  Lambert,  2  Bosw.  (N.  Y.)  410. 

570;    Brouwer   v.    Jones,    23    Barb.         ^-^  Brugman  v.  Noyes,  6  Wis.  1. 
(N.  Y.)  153;  De  Forest  v.  Byrne,  1         "«Welz  v.  Rhodius,  87  Ind.  1,  44 

Hilt.   (N.  Y.)   43.  Am.  R.  747. 

^^  Ferris    v.    American    Brewing        °^  Doyle  v.  Dixon,  97   Mass.   208; 

Co.,  155  Ind.  539,  58  N.  E.  701.  Lyon    v.    King,    11    Mete.     (Mass.) 

"'Cowell   v.    Springs   Co.,   100   U.  411;  Hill  v.  Hooper,  1  Gray  (Mass.) 

S.    55,    57,    25    L.    Ed.    547;    Collins  131;  Wiggins  v.  Keizer,  6  Ind.  252; 

Mfg.    Co.   V.   Marcy,   25    Conn.    242;  Hill  v.  Jamieson,  16  Ind.  125. 
O'Brien  v.  Wetherell,  14  Kan.  616;         '^^'' Postal  Tel.  &c.  Co.  v.  Western 

Indian    &c.    Co.    v.    Sikes,    8    Gray  Union   &c.  Co.,   155    111.  335,   40   N. 

(Mass.)    562;   Watrous  v.  Allen,  57  E.   587,   51   111.  App,   62.     See  also, 

Mich.  362,  24  N.  W.  104;    Smith  v.  Kemp  v.  Bird,  L.  R.  5  Ch.  Div.  549. 


§  383]  COVENANTS  IN  LEASES.  430 

A  lessee's  title  to  an  adjoining  estate  cannot  enable  him  to  dispense 
with  a  stipulation  regarding  passageways  made  by  him  as  lessee  of 
the  demised  estate;  a  foriiori  his  title  under  the  lease  cannot  enable 
him  to  close  up  a  gangway  which,  for  the  benefit  of  the  leased  premises 
as  well  as  of  the  adjoining  estates,  he  agreed  in  the  lease  to  keep  open 
during  his  entire  term.  The  lease  looks  through  the  term  and,  as  be- 
tween him  and  his  landlord,  restricts  his  rights  as  tenant  in  this  very 
particular ;  and  such  title  might  as  well  be  urged  as  enabling  him  to  dis- 
pense with  any  other  stipulation  of  the  lease  as  the  one  under  consid- 
eration.""^ 

§  383.  What  constitutes  a  covenant  for  restrictive  use. — Whether 
a  recital  in  a  lease  as  to  the  purpose  for  which  the  premises  are  to  be 
used,  without  an  express  prohibition  against  their  use  for  other  pur- 
poses, precludes  their  use  for  other  purposes,  is  a  matter  about  which 
courts  have  disagreed.  On  one  side  a  recital  that  premises  were  to  be 
occupied  as  a  lumber  yard  was  held  to  be  an  express  covenant  to  oc- 
cupy them  as  a  lumber  yard.  To  constitute  an  express  covenant,  no 
formal,  technical,  or  precise  terms  are  required,  but  whenever  the  in- 
tent of  the  parties  can  be  collected  out  of  the  deed,  for  the  doing  or  not 
doing  a  particular  thing,  that  is  sufficient  to  make  an  express  covenant. 
The  intention  here  was  as  plain  as  if  the  words  of  the  lease  were  "I 
covenant  and  agree  to  occupy  the  premises  as  a  lumber  yard,"  and, 
therefore,  occupying  them  for  another  purpose  was  a  breach  of  the 
covenant.^^^  According  to  this  doctrine  a  stipulation  against  sub-let- 
ting except  for  certain  purposes  would  restrict  the  use  of  the  premises 
by  sub-tenants  to  the  specified  purpose.^^^  On  the  other  hand,  a  mere 
statement  in  a  lease  of  the  purj)ose  for  which  the  premises  are  leased 
has  been  held  not  to  be  a  covenant  against  their  use  for  other  purposes, 
relying  on  the  rule  that  restrictions  upon  beneficial  use  are  not  to  be 
raised  by  implication.  In  a  case  where  this  question  arose,  after  the  de- 
scription of  the  jDremises  in  a  lease,  there  followed  the  clause  "to  be 
used  as  cabinet  ware-rooms."  The  court,  in  holding  this  did  not  restrict 
the  lessees  to  such  use,  said:  "Of  course  the  intention  of  the  parties 
must  control  in  the  case.  .  .  .  We  do  not  feel  authorized  in  saying 
that  the  sense  and  meaning  of  the  words  employed  show  that  it  was  the 
intention  of  the  parties  to  restrict  the  use  of  the  building  for  cabinet 

°"  Beckwith    v.    Howard,    6    R.    I.  suit  is  reached  in  Maddox  v.  White, 

1,  11.  4    Md.    72;    Freer    v.    Stotenbur,    2 

'"^De  Forest  V.  Byrne,  1  Hilt.  (N.  Keyes     (N.     Y.)     467;     Farwell    v. 

Y.)  43;  White  v.  Kane,  53  Mo.  App.  Easton,  63  Mo.  446. 

300.     By  implication   the   same   re-  "^  Farwell  v.  Easton,  63  Mo.  446. 


421  EESTKICTIXG    USE   OF   PREMISES.  [§    383 

ware-rooms,  and  prohibit  the  use  of  them  for  anj'  other  purpose.  We 
think  such  a  construction  is  forced.  .  .  .  It  is  obviously  inconsistent 
with  the  principles  upon  which  courts  of  equity  act,  to  raise  by  implica- 
tion a  covenant  in  restraint  of  a  beneficial  use  of  property."^^*  Had  the 
restrictive  clause  been  followed  by  the  words,  "and  for  no  other  Tcind  of 
lusiness,"  equity  would  then  have  enforced  the  restrictive  covenant.^^^ 
Thus  the  use  of  part  of  premises  for  a  saloon  or  dramshop  was  not  a 
proper  use  when  a  restriction  provided  they  were  "to  be  used  for 
studio,  salesroom,  and  dwelling  purposes,  and  for  no  other  purpose 
whatever."^^^  Where  a  store  was  leased  "to  be  occupied  for  a  grocery 
store,  and  for  no  other  purpose,"  it  was  held  necessary  actually 
to  conduct  a  grocery  store  to  comply  with  the  covenant,  while  storing 
groceries  there  was  a  breach  of  the  condition.^^^ 

A  restriction  in  a  lease  of  premises  that  they  are  "to  be  used  as  a 
first-class  liquor  saloon  only"  is  a  restriction  upon  the  class  of  liquor 
saloon, — it  must  be  first-class.  It  could  not  be  the  intention  of  the 
parties,  in  view  of  the  contingencies^  affecting  the  procurement  of  the 
license,  that  the  lessee  should  pay  the  rent  during  the  term  for  prem- 
ises which  were  to  remain  idle  unless  he  could  open  a  saloon  there.  It 
is  not  a  letting  for  an  unlawful  purpose  merely  because  a  liquor 
license  had  not  been  obtained  first.°^^ 

A  covenant  is  to  be  construed  according  to  its  terms,  and  these  may 
prohibit  a  different  use  without  compelling  a  continued  use  for  the 
purpose  named.  In  such  case  the  lessee  does  not  covenant  to  continue 
the  use,  but  merely  covenants  not  to  use  the  premises  "for  any  other 
purpose."  A  covenant  not  to  use  the  demised  premises  for  any  other 
purpose  than  a  specified  one  is  not  broken  by  ceasing  to  use  them  for 
that  purpose,  provided  it  is  not  used  for  anything  else.^^'' 

A  stipulation  in  the  lease  of  a  quarry  having  openings  on  four  sides 
that  it  shall  be  worked  as  the  face  now  opens,  is  not  violated  by  quar- 
rying one  of  the  faces  to  a  greater  extent  than  the  others/ 


540 


'^^Brugman   v.    Noyes,    6   Wis.    1.  ^^^  McCormick  v.  Stephany,  57  N. 

See    also,    Shumway    v.    Collins,    6  J.  Eq.  257,  41  Atl.  840. 

Gray   (Mass.)   227.  =^°  Keeler  v.   Green,   21    N.   J.   Eq. 

""^  Steward    v.    Winters,    4    Sandf.  27.     A    lease    provided   that   lessee 

Ch.   (N.  Y.)    587.  should  not  mine  the  land  south  or 

"'Bryden     v.     Northrup,     58     111.  east   of   a   certain   building,    and    it 

App.  233.  was  held  that  this  restriction   cov- 

"^  White   v.   Naerup,   57    111.   App.  ered  the  land  southeast  of  the  build- 

114.  ing.     Oskaloosa  College  v.  Western 

=^«Kerley   v.    Mayer,    31    N.    Y.    S.  Union  &c.  Co.,  90   Iowa  380,   54  N. 

818,  10  Misc.  R.   (N.  Y.)    718.  W.  152,  57  N.  W.  903. 


§  384]  COVENANTS  IN  LEASES.  433 

§  384.  Equity  will  restrain  an  infraction  of  an  agfreement  in  a 
lease  in  regard  to  the  use  of  the  premises,  although  such  lease  does 
not  contain  a  formal  covenant  or  a  forfeiture  clause  with  a  right  of 
reentry.  ^*^  When  the  mode  of  occupation  is  fixed  by  the  lease,  or 
when  the  intention  of  the  parties  to  confine  the  leased  premises  to  a 
special  use  may  be  fairly  implied  from  the  words  of  the  lease,  then 
the  tenant  may  be  enjoined  from  converting  the  property  to  other 
purposes.^*^  The  danger  of  irreparable  injury  from  the  breach  of 
covenant  need  not  be  shown  to  entitle  the  lessor  to  an  injunction.  An 
injunction  to  stay  waste  would  issue  on  allegations  that  the  complain- 
ant was  the  owner  and  entitled  to  the  possession  of  premises  and  the 
tenant  was  insolvent  and  threatened  to  destroy  improvements.^*^  A 
right  of  reentry  reserved  in  a  lease  can  rarely  be  said  to  be  in  law  a 
fair  equivalent  for  the  performance  of  the  lease.  This  is  obviously 
true  if  the  reentry  have  the  effect  of  terminating  the  lease.  Even  if 
the  tenants'  obligation  to  pay  rent  continues  after  forfeiture,  the  land- 
lord would  have  to  account  for  the  value  of  the  possession,  or  at  least 
for  such  rents  as  he  should  make,  or  might  with  proper  diligence 
make,  by  means  of  such  possession.  That  could  not  be  so  beneficial 
to  the  landlord  as  performance  of  the  lease  by  the  tenant.^**  A  court 
of  equity  will  not,  however,  exercise  its  jurisdiction  to  enjoin  a  breach 
of  a  negative  covenant,  unless  it  is  express  or  can  be  fairly  implied 
from  the  stipulation  of  the  parties,  and  injury  will  result  from  its 
breach.  If  a  party  has  not  seen  fit  to  stipulate  expressly  against  the 
objectionable  act  in  his  contract,  a  court  of  equity  will  not,  by  impli- 
cation, insert  it.^*^     And  even  where  the  covenant  expressly  requires 

■^  Spalding  Hotel  Co.  v.  Emerson,  "^  Frank    v.    Brunnemann,    8    W. 

69  Minn.  292,  72  N.  W.  119;  Bryden  Va.  462;  High  on  Injunctions,  §  714. 

V.  Northrup,  58  111.  App.  233;  Ferris  "*  Stees   v.   Kranz,   32   Minn.   313, 

V.  American  Brewing  Co.,  155  Ind.  20  N.  W.  241. 

539,    58    N.    E.    701;    De   Forest   v.  "=  Postal  Tel.  &c.  Co.  v.  Western 

Bryne,   1   Hilt.    (N.   Y.)    43;    Dodge  Union  Tel.   Co.,  155  111.  335,  40   N. 

V,  Lambert,   2   Bosw.    (N.  Y.)    570;  E.    587,    affirming    51    111.    App.    62; 

Maddox  v.  White,  4  Md.  72;   Frank  Sheets   v.    Selden,   7   Wall.    (U.    S.) 

V.  Brunnemann,  8  W.  Va.  462;  Kirk-  416;   Des  Moines  R.  Co.  v.  Wabash 

Patrick    v.    Peshine,    24    N.    J.    Eq.  R.  Co.,  135  U.  S.  576;   Consolidated 

206;    Gannett  v.   Albree,   103   Mass.  Coal  Co.  v.  Schmisseur,  135  111.  371, 

372;   Kraft  v.  Welch,  112  Iowa  695,  25  N.  E.  795.     In  granting  the  re- 

84  N.  W.  908.  lief  prayed   for   in   Spalding   Hotel 

^"Reed    v.    Lewis,    74    Ind.    433;  Co.   v.   Emerson,   69   Minn.   292,   72 

Steward   v.   Winters,   4    Sandf.   Ch.  N.  W.  119,  the  court  said:   "While, 

(N.   Y.)    587;    Maddox  v.   White,   4  as  before  stated,  there  was  no  ex- 

Md.  72.  press  or  formal  covenant  as  to  the 


4S3  RESTRICTING   USE   OF   PREMISES.  [§    385 

that  the  premises  be  used  for  a  specified  purpose,  equity  will  not  en- 
force affirmative  compliance  with  it,  for  that  would  be  requiring  a  per- 
son to  carry  on  a  business.^*^ 

A  lessor  who,  seeing  a  lessee  spend  money  in  preparing  property  for 
a  use  forbidden  by  the  lease  on  the  faith  that  no  objection  will  be 
made,  stands  by  and  makes  no  objection,  cannot  have  the  covenant  en- 
forced in  equity.  If  the  lessor  acquiesces  in  the  doing  of  acts  which  are 
inconsistent  with  the  covenant,  he  cannot  come  to  a  court  of  equity  to 
have  the  covenant  or  contract  enforced.^*^  But  for  all  injury  caused 
by  a  prohibited  use  of  leased  premises  the  lessee  is  liable  to  the  lessor 
in  damages  in  an  action  at  law.^*^ 

§  385.  A  covenant  for  exclusive  personal  occupation  on  the  part 
of  the  lessee  cannot  be  classed  as  one  of  the  usual  covenants  in  a  lease. 

If  there  is  no  promise  by  the  lessee  that  he  will  personally  occupy,  the 
"ordinary  covenants"  which  a  conveyancer  is  instructed  to  insert  in 
an  instrument  of  lease  will  not  embrace  a  covenant  for  exclusive  per- 
sonal occupation  upon  the  part  of  the  lessee,  or  that  he  will  not  con- 
duct the  leased  farm  by  agents  or  employes.^*^  Such  a  stipulation  is, 
however,  valid  and  binding  if  inserted  in  a  lease,  and  a  covenant  that 
the  lessee,  his  executors  and  administrators  shall  constantly  reside 
upon  the  demised  premises  during  the  demise  has  been  held  to  run  with 
the  land  and  to  be  binding  upon  the  assignee  of  the  lessee,  though  he  be 
not  named.  Such  a  covenant  is  quodam  modo  annexed  and  apperti- 
nant  to  the  thing  demised,  according  to  the  first  and  sixth  resolutions 
in  Spencer's  case,  and,  therefore,  the  assignee  would  be  bound  though 
he  were  not  expressly  named. ^^"^ 

The  right  of  a  landlord  to  interfere  with  and  control  the  domestic 
relations  of  his  tenant  has  received  no  recognition  in  the  United  States. 

use  to  which  the  premises  should  covenant  in  respect  to  the  use  of 
he  put  in  the  lease,  there  was  cer-  the  premises,  with  a  formal  forfeit- 
tain  language  used  therein  and  ure  and  right  of  reentry  clause, 
some  stipulations,  which,  fairly  con-  No  effect  can  be  given  to  this  por- 
strued,  amounted  to  an  agreement  tion  of  the  lease  unless  it  be  held 
that  the  building  was  to  be  occu-  that  there  was  a  positive  and  en- 
pied  by  the  tenant  for  hotel  pur-  forceable  agreement  of  the  nature 
poses  only.  It  was  recited  that  above  mentioned." 
the  premises  leased  were  an  hotel  =*«  Hooper  v.  Broderick,  11  Sim. 
building,    and    were    demised   .and  47. 

leased  for  hotel  purposes  and  to  be         ''"  Malley  v.  Thalheimer,  44  Conn, 

operated    as    such.       [There    was]  41. 

language  and  stipulations  which  in         "'  Taylor  v.  Koshetz,  88  111.  479. 
this  form  of  action  ought  to  be  con-        ""  Clark  v.  Clark,  49  Cal.  586. 
strued  as  equivalent  to  an  express        ^^^^  Tatem  v.  Chaplin,  2  H.  Bl.  133. 


§'  386]  COVENANTS  IN  LEASES.  434 

The  relation  of  landlord  and  tenant  rests  upon  contract,  and  in  the 
absence  of  a  stipulation  to  the  contrary,  a  landlord  cannot  exclude 
from  the  domicile  of  the  tenant  the  wife  of  the  latter.  The  previous 
bad  character  of  the  tenant's  wife  did  not  constitute  a  breach  of  any- 
legal  or  moral  duty  due  from  the  tenant  to  the  landlord,  and  the  ten- 
ant could  not  be  excluded  from  the  enjoyment  of  the  premises  because 
he  occupied  them  with  his  wife.^^^ 

§  386.  An  agreement  by  a  lessee  not  to  "make  or  suffer"  an  unlaw- 
ful use  of  the  premises  should  be  interpreted  as  a  stipulation  that 
there  shall  be  no  unlawful  use  by  the  original  lessee,  or  by  any  per- 
son who  is  occupying  under  him.  The  reason  for  this  interpretation 
is  that  it  is  easy  for  the  lessee  to  control  the  use  of  the  property,  and 
to  protect  the  interests  of  the  lessor  and  of  himself  in  this  particular. 
With  this  interpretation  effect  is  given  to  the  word  "suffer."  It  may 
not  be  reasonable  to  hold  that  the  covenant  makes  the  lessee  liable  for 
an  unlawful  use  of  the  property  by  trespassers;  but  he  may  well  be 
held  to  "suffer"  an  unlawful  use  of  the  property  if  he  does  not  take 
effectual  measures  to  prevent  such  a  use  by  those  who  occupy  by  his 
authority.^^^ 

A  covenant  on  the  part  of  the  lessee  to  keep  the  premises  clean,  and 
not  to  occupy  them  for  a  saloon  or  meat  market  was  held  to  be  broken 
by  the  use  of  them  for  a  morgue.  The  word  "clean"  was  used  in  an 
absolute  and  not  in  a  comparative  sense.  The  terms  of  the  lease  did 
not  authorize  the  lessees  to  occupy  the  premises  for  any  business,  how- 
ever foul  in  itself,  by  excepting  that  of  a  meat  market  and  a  saloon. 
On  the  contrary,  the  agreement  to  keep  the  premises  clean  would  pre- 
vent their  use  for  any  purpose  which  would  necessarily  make  them 
foul  and  unclean.  The  condition  expressed  was  not  merely  to  keep  the 
premises  clean,  provided  the  nature  of  the  use  to  which  the  lessees 
should  subject  the  property  would  render  that  possible,  or  as  clean  as 
the  nature  of  the  business  which  the  lessee  might  elect  to  carry  on 
there  would  allow,  but  to  keep  them  "clean."^^^ 

Though  a  lease  of  rooms  restrict  their  use  to  a  particular  purpose, 
the  lessor  does  not  thereby  retain  any  control  over  them  which  renders 
it  his  duty  to  prevent  their  use  for  illegal  gaming.  It  should  be  left  to 

'"Miles  V.  Lauraine,  99  Ga.  402,  12,  39  N.  E.  409;  Wheeler  v.  Earle, 
27  S.  E.  739.  5  Cush.  (Mass.)  31. 

''^^^  Miller    v.    Prescott,    163    Mass.         "^  Clemenston      v.      Gleason,      36 

Minn.  102,  30  N.  W.  400. 


425  AS  TO  SALE  OF  PREMISES.  [§  387 

the  jury  whether  or  not  the  lease  was  a  sham  and  the  lessor  was  in  ac- 
tual control.^^* 

VI.   As  to  Sale  of  Premises. 

§  387.  An  option  in  a  lease  giving  the  lessee  a  privilege  of  pur- 
chasing the  premises  for  a  certain  stipulated  price  is  valid  and  en- 
forceable as  it  is  a  part  of  the  lease  and  supported  by  the  consideration 
thereof.  It  is  not  a  separate  and  distinct  offer  which  could  be  with- 
drawn at  any  time  before  aeceptance.^^^  The  general  rule  is  that 
where  a  contract  consists  of  several  distinct  and  separate  stipulations 
on  one  side,  and  a  legal  consideration  is  stated  on  the  other,  it  must 
be  considered  that  the  entire  contract  was  in  the  contemplation  of  the 
parties  in  each  particular  stipulation,  and  formed  one  of  the  induce- 
ments therefor,  and  no  one  stipulation  can  be  supposed  to  result  from 
or  compensate  for  the  consideration  or  any  portion  of  it  exclusive  of 
other  stipulations,  unless  the  parties  have  expressly  so  declared.^^*'  The 
privilege  conceded  to  the  lessee  to  purchase  within  the  period  of  the 
lease  is  as  much  a  term  of  the  lease,  and  binding  upon  the  lessor,  as 
any  other  term  of  the  instrument.  The  lessee,  it  is  true,  is  not  bound 
to  purchase ;  but  upon  a  good  consideration  the  lessor  bound  himself 
to  sell  upon  certain  terms  if  the  lessee  wished  to  buy.^^'^  Still  Lord 
Chancellor  Eedesdale  thought  that  a  contract  ought  to  be  mutual  to 
be  binding  in  equity,  and  that  if  one  party  could  not  enforce  it  the 
other  ought  not  to  be  permitted  to  do  so.^^^  But  there  is  no  reason 
why  such  an  option  should  not  be  enforced.     The  contract  was  fair 

■^Robinson  v.  The  State,  24  Tex.  "'Lawrenson  v.  Butler,  1  Sch.  & 

152.  Lef.    13.     Chancellor   Kent   was   of 

°°^  De  Rutte  v.   Muldrow,   16   Cal.  the    same    opinion.      In    Clason    v. 

505,  513;  Hall  v.  Center,  40  Cal.  63,  Bailey,   14   Johns.    (N.   Y.)    488,   he 

67;   Perkins  v.  Hadsell,  50  111.  216;  said:     "I    have    thought    and    have 

Souffrain  v.  McDonald,  27  Ind.  269;  often  intimated  that  the  weight  of 

Rogers  v.  Saunders,  16  Me.  92,  97;  argument  was  in  favor  of  the  con- 

Hawralty  v.  Warren,  18   N.  J.  Eq.  struction   that   the   agreement   con- 

124;    Clason    v.    Bailey,    14    Johns,  cerning    lands,    to    be    enforced    in 

(N.  Y.)   484,  488;   Parkhurst  v.  Van  equity,  should  be  mutually  binding, 

Cortland,    14    Johns.     (N.    Y.)     15;  and  that  one  party  ought  not  to  be 

Kerr  v.  Day,  14  Pa.  St.  112;  Corson  at  liberty  to  enforce,  at  his   pleas- 

v.  Mulvany,  49  Pa.  St.  88;  Schroeder  ure,  an  agreement  which  the  other 

V.  Gemeinder,  10  Nev.  355.  was   not   entitled   to   claim.     .     .     . 

^"^  Stansbury   v.    Fringer,    11    Gill  But  notwithstanding  this  objection 

&  J.   (Md.)   149.  it  appears  from  the  review  of  the 

°"  De  Rutte  v.   Muldrow,   16   Cal.  cases    that    the    point    is    too    well 

505,  513.  settled  to  be  now  questioned." 


§  387]  COVENANTS  IN  LEASES.  426 

and  just  in  all  its  parts,  and  was  not  a  hard  or  unconscionable  bargain. 
The  mere  option  to  purchase  may  be  sold.  It  is  as  valid  to  agree  to 
sell  property  upon  the  condition  that  another  will  consent  to  buy  as 
upon  any  other  condition.  If  the  lessee  has  fairly  bought  and  paid 
for  the  option,  there  is  no  principle  or  policy  of  law  violated  in  its 
purchase.^^® 

A  covenant  to  convey  to  the  lessee  at  any  time  during  the  term  is  a 
continuing  obligation  running  with  the  land  and  binding  the  lessor's 
interest,  with  the  option  in  the  tenant  to  accept  the  same  or  not  with- 
in that  time.^®**  Under  a  stipulation  giving  to  lessees  the  right  and 
privilege  to  purchase  the  leased  premises  at  any  time  before  the  ex- 
piration of  the  lease,  for  a  sum  to  be  paid  down  in  cash  upon  the  de- 
mand of  a  deed  prior  to  the  expiration  of  the  lease,  the  payment  of 
the  stipulated  sum  or  tender  of  it,  within  the  time  limited,  is  an  es- 
sential condition  to  the  consummation  of  any  binding  contract  of 
sale.  Equity  cannot  vary  the  terms  of  such  a  stipulation  by  an  ex- 
tension of  the  privilege.  The  time  limited  for  acceptance  is  part  of 
the  contract,  and  equity  cannot  interfere  except  in  case  of  fraud  or 
mistake.  It  differs  from  the  case  of  penalties  which  are  annexed  to 
contracts  to  secure  their  performance.^"^ 

In  a  case  where  the  covenant  was  that  if  the  lessee  "should  at  any 
time  thereafter  pay  to  the  lessor"  a  specified  sum,  the  lessor  should 
execute  a  deed  of  the  leased  premises,  the  court  said :  "If  the  covenant 
had  been  to  convey,  upon  the  payment  of  the  purchase-money  during 
the  life  of  the  lease,  putting  an  end  to  the  lease  would  have  destroyed 
the  covenant.  But  the  covenant  is  to  convey  whenever  the  purchase- 
money  should  be  paid.  In  such  cases  the  conveyance  may  be  demanded 
at  any  time,  and  the  existence,  or  non-existence,  of  the  lease  when  the 
demand  is  made,  is  immaterial  to  the  rights  of  the  parties."^"-  The 
answer  to  an  objection  that  money  was  not  tendered  within  the  time 

^^'Hall  V.  Center,  40  Cal.  63,  67.  lation  of  landlord  and  tenant,  and 
'""' Maughlin  v.  Perry,  35  Md.  352;  the  insurance  went  to  the  landlord 
Schroeder  v.  Gemeinder,  10  Nev.  as  owner.  Gilbert  v.  Port,  28  Ohio 
355.  "Where  a  lease  contained  an  St.  276.  Citing  Townley  v.  Bedwell, 
option  to  the  lessee  to  purchase,  14  Ves.  591,  where  rents,  under  op- 
and  before  he  exercised  his  option  tion  to  purchase  lease,  were  held  to 
the  premises  burned  down,  it  was  belong  to  heir  of  lessor  till  option 
held  that  the  lessee  could  not  elect  was  exercised  when  executor  be- 
to  purchase,  bring  specific  perform-  came  entitled  to  purchase  money, 
ance  of  the  contract  against  the  °'*  Steele  v.  Bond,  32  Minn.  14,  18 
lessor  and  claim  the  insurance  on  N.  W.  830. 

the  burned  buildings.     At  the  time  ''"^  Prout    v.    Roby,    15    Wall.    471, 

of  the  fire  the  parties  stood  in  re-  476. 


437  AS  TO  SALE  OF  PREMISES.  [§  388 

limited  in  the  lease  is  that  mere  default  in  the  payment  of  money  at 
a  stipulated  time  admits,  in  general,  of  compensation,  and  hence  time 
of  payment  is  seldom  treated  as  of  the  essence  of  real  contracts.  So 
it  has  been  held  that  a  covenant  for  title  was  implied  in  a  renewal  of 
a  lease  from  year  to  year.^"^  But  without  carrying  the  doctrine  to 
such  an  extent,  an  option  to  purchase  may  be  regarded  as  continuing 
open  during  the  period  covered  by  a  privilege  of  renewal  in  a  lease, 
the  time  not  being  limited  to  the  years  mentioned  in  the  lease,  nor 
restricted  to  the  time  of  the  existence  of  the  lease  under  the  privilege 
of  renewal.  The  language  is  general, — at  any  time  they  wish  to  do  so. 
Construing  it  liberally,  in  favor  of  the  lessor,  it  certainly  gives  to  the 
lessee  the  privilege  of  purchasing  the  property  at  any  time  during  the 
existence  of  the  lease.^^* 

§  388.    A  clause  in  a  lease  reserving  to  the  lessor  the  right  to  sell 

and  providing  that  any  of  the  premises  sold  during  the  term  should 
cease  to  be  a  part  of  the  demised  premises,  is  valid  and  enforceable.  It 
is  clear  from  such  a  lease  that  the  contract  is  not  that  the  lessee  is,  at 
all  events,  to  hold  for  the  term  the  land  conveyed,  but  that  his  right 
in  so  much  as  should  be  sold  during  the  term  should  cease  upon  such 
sale.  Such  bargains  are  common,  and  clauses  inserted  to  express  them 
have  often  been  given  effect.^®^  Such  a  provision  is  not  void  as  being 
repugnant  to  the  habendum  of  the  lease.  Any  provision  stipulating 
that  during  the  term  a  lessor  may  enter  or  may  terminate  the  lease  is, 
in  a  sense,  repugnant  to  words  demising  land-  for  a  fixed  term ;  but 
such  stipulations  are  found  in  most  leases,  and  are  not  held  void  be- 
cause repugnant  to  the  words  of  the  demise.  If  it  is  clear  that  the 
contract  was  that  the  lessee  should  take  his  estate  subject  to  a  defeas- 
ance by  a  sale  of  the  demised  property  by  the  lessor,  to  hold  the  clause 
defining  the  reserved  right  of  the  lessor  void  because  repugnant  to  the 
demise  would  be  unwarrantably  to  defeat  an  intention  which  the  par- 
ties have  clearly  expressed.^*'®  The  sale  of  a  life  estate  in  the  land 
would  terminate  a  lease  for  years  under  such  a  provision,  and  the  life 
tenant  is  the  proper  person  to  give  the  thirty  days'  notice  required  by 
the  lease.^^'^    The  objection  that  such  an  agreement  is  not  mutual  by 

'^^'D'Arras   v.   Keyser,   26   Pa.   St.  ton,   161   Mass.   313,   37  N.   E.   372; 

249,  254.  Aydlett  v.  Pendleton,  114  N.  Car.  1, 

°'*  Schroeder     v.     Gemeinder,     10  18  S.  E.  971. 

Nev.  355.  '''"'  Shaw    v.    Appleton,    161    Mass. 

'""Munigle     v.     Boston,     3     Allen  313,    37    N.    E.    372;    Hunnewell   v. 

(Mass.)  230;  O'Connor  v.  Daily,  109  Bangs,  161  Mass.  132,  36  N.  E.  751. 

Mass.  235;    Pynchon  v.  Stearns,  11  ="  Aydlett    v.    Pendleton,    114    N. 

Mete.   (Mass.)   304;   Shaw  v.  Apple-  Car.  1,  18  S.  E.  971. 


§  388]  COVENANTS  IN  LEASES.  428 

its  terms  is  not  valid.  The  lessor  reserves  the  right  to  sell  and  the 
lessee  agrees  to  surrender  possession  at  once  upon  sale.  The  lessee 
could  not  be  compelled  by  a  new  owner  to  hold  the  premises,  and  if 
the  occupation  continued  after  the  sale  it  would  be  by  virtue  of  a  new 
agreement  between  the  parties,  and  not  by  virtue  of  the  lease.  The 
parties  mean  that  a  sale  is  to  terminate  the  lease,  ipso  facto,  and  the 
lessee's  covenant  signifies  his  assent  to  this.^®^  If  a  lessee  is  to  vacate  the 
premises  before  the  expiration  of  his  term,  only  upon  the  contingency 
that  the  lessors  should  desire  to  sell  them,  and  upon  notice  of  such 
desire  being  given,  no  other  purpose  than  that  of  selling  would  author- 
ize the  giving  of  the  notice,  and  if  the  lessee  is  entitled  to  notice  by  ex- 
press agreement,  a  notice  stating  no  desire  to  sell  can  have  no  effect.^®* 
Wliere  a  lease  is  conditioned  on  circumstances  that  land  be  not  sold,  a 
hona  fide  sale  is  intended,  and  if  a  colorable  sale  is  made,  the  lessee 
may  sue  for  damages.  If  the  sale  is  a  fraudulent  one,  made  for  the 
purpose  of  defrauding  the  lessee  out  of  his  rights  under  the  lease,  it 
is  not  such  a  sale  as  will  defeat  the  contract;  for  where  a  contract 
makes  a  sale  a  condition,  it  means  a  sale  in  good  faith,  and  not  a 
fraudulent  one.  Parties  who  contract  respecting  a  sale  have  in  con- 
templation a  sale  in  good  faith,  and  not  one  founded  in  fraud.  It 
would  be  strange  if  a  lessor  could,  by  a  fraudulent  sale  made  for  the 
purpose  of  defeating  his  lessee,  avoid  the  lease  and  thus  avail  himself 
of  his  own  wrong.^^"  If  the  powers  of  a  court  of  equity  are  in- 
voked by  a  bill  for  equitable  relief  against  an  alleged  fraudulent  sale, 
a  decree  that  the  sale  should  be  treated  as  in  all  respects  subject  to 
the  lease  would  meet  all  the  lessee's  equities.  Conceding  the  sale  to 
be  fraudulent,  that  would  furnish  adequate  relief. ^^^  Or  a  lessee 
might  yield  to  a  notice  to  quit,  according  to  a  covenant  in  the  lease,  in 
case  the  lessor  wished  to  put  the  land  to  a  different  use,  and  recover 
damages  as  for  an  eviction  if  the  landlord  did  not  in  fact  discontinue 
the  former  use.^'^^  Such  a  provision  contemplates  a  sale  which  trans- 
fers a  present  right  of  possession.  Thus,  where  a  contract  for  sale 
was  made  prior  to  the  expiration  of  a  term,  but  did  not  take  effect  till 
after  the  lease  had  expired,  the  lessee  did  not  become  entitled  under  a 
provision  allowing  him  the  value  of  improvements  in  case  of  a  sale 

^««  Rhode  Island  Hospital  &c.  Co.  5  N.  E.  558;  Davis  v.  Schweikert, 
V.  Baxter,  20  R.  I.  553,  40  Atl.  1135.     130  Cal.  143,  62  Pac.  411. 

^"^  Sloan  V.  Cantrell,  5  Cold.  ^'^  Allenspach  v.  Wagner,  9  Colo. 
(Tenn.)   571.  127,  10  Pac.  802. 

""Trout  V.  Perciful,  105  Ind.  532,        "=  Salzgeber    v.    Mickel,    37    Ore. 

216,  60  Pac.  1009. 


429  FOR  INSUKANCE.  [§    389 

during  the  term."^  But  a  sale  subject  to  the  lease  was  modified  by  a 
provision  that  the  purchaser  could  end  the  term  by  thirty  days'  notice, 
and  if  the  purchaser  exercised  that  privilege  the  lessee  could  recover 
the  sum  allowed  by  the  lease  on  such  a  contingency.^^* 

VII.    For  Insurance. 

§  389.  So  common  is  the  practice  of  fastening  on  the  lessee  the 
burden  of  insuring  that  it  has  been  held  that,  if  an  agreement  be 
made  for  a  lease,  with  the  usual  covenants,  the  lessee  is  not  entitled 
to  have  the  insurance  covenant  omitted. ^'^^  A  general  covenant  on  the 
part  of  a  lessee  to  insure  puts  him  under  obligation  to  take  out  in- 
surance against  fire  if  the  demised  premises  consist  of  a  building.  A 
general  undertaking  to  insure  is  sufficiently  definite  without  specify- 
ing the  kind  of  insurance  to  be  effected.  It  would  be  hypercritical  to 
give  a  construction  to  general  language  which  would  exclude  an  in- 
surance against  loss  by  fire,  or  declare  it  too  uncertain  to  be  enforced 
for  any  purpose. ^'^  The  mode  of  insuring  may  be  put  within  the  con- 
trol of  either  party.  Thus  a  lessee,  covenanting  to  insure  for  a  certain 
sum  during  the  term  in  companies  approved  by  the  lessor,  fulfilled  his 
covenant  when  he  took  out  a  policy  for  the  benefit  of  both  lessor  and 
lessee  according  to  their  respective  interests ;  and  he  was  not  bound  to 
renew  a  policy  previously  taken  out  by  the  lessor  in  his  own  interest 
merely.^'^^  On  the  other  hand,  the  control  over  the  details  of  effecting 
the  insurance  may  be  left  with  the  lessor,  and  in  such  case  he  is  respon- 
sible for  the  solvency  of  the  companies  in  which  he  insures.  So  a  les- 
see who  has  once  complied  with  a  convenant  to  pay  extra  insurance 
cannot  be  compelled  to  pay  over  again  when  the  insurance  companies 
selected  by  the  lessor  become  insolvent.^'*  A  requirement  in  a  lease 
that  the  premises  should  be  kept  insured  and  the  insurance  assigned 
to  the  lessor  is  sufficiently  complied  with  to  prevent  a  breach  of  con- 
dition by  the  taking  out  of  insurance  alone  without  any  assignment, 
when  the  lessor  makes  no  objection  to  such  an  arrangement.^'^^  But 
the  fact  that  a  lessee  was  told  by  two  or  three  insurance  agents,  to 
whom  he  applied  for  insurance  on  the  property,  that  such  property 

'''Stewart  v.  Pier,  58  Iowa  15,  11  "'Rhone  v.  Gale,  12  Minn.  54. 

N.  W.  711.  "■  Sherwood   v.    Harral,   39   Conn. 

="Hazen   v.   Hoyt    (Iowa),   75   N.  333. 

W.  647.  ^"Quincy  v.  Carpenter,  135  Mass. 

"=Bodman  v.  Murphy,  35  Md.  154;  102. 

citing  Bunyon  on  Fire  Ins.,  p.  132,  ="  Eberts  v.  Fisher,  54  Mich.  294, 

133.  20  N.  W.  80. 


§•   390]  COVEXAXTS   IN    LEASES.  430 

was  not  insurable,  does  not  show  such  impossibility  of  performance 
of  the  contract  to  insure  as  to  excuse  its  non-performance.^  ®° 

Although  it  was  formerly  a  matter  of  some  dispute  as  to  whether  a 
covenant  to  insure  might  run  with  the  land,  it  is  now  settled  that  such 
a  covenant  runs  with  the  land  and  binds  assignees.^*^  A  covenant, 
to  run  with  the  land,  must  have  for  its  subject-matter  something 
which  sustains  the  estate  or  the  enjoyment  of  it,  and  is,  therefore, 
beneficial  to  both  lessor  and  lessee.  A  covenant  to  insure,  which 
had  for  its  object  the  benefit  of  the  lessor  only,  as  where  the  money 
paid  in  the  event  of  a  loss  would  go  to  him,  has  been  regarded  as 
collateral ;  but  if  the  money  is  to  be  applied  to  repair  or  rebuild,  then 
it  is  in  its  character  like  a  covenant  to  repair,  which  may  run  with 
the  land.  When  such  a  covenant  to  insure  has  for  its  object  a  build- 
ing to  be  erected  after  the  date  of  the  lease  but  which,  when  erected,  is 
to  be  used  by  the  lessee  and  is  an  essential  ingredient  in  the  agree- 
ment of  the  parties  for  the  creation  of  the  estate,  it  is  not  indispensable 
to  make  such  a  covenant  run  with  the  land,  that  assignees  should  be  ex- 
pressly named;  but  the  covenant  being  one  which  may  be  annexed  to 
the  estate  and  run  with  the  land,  equivalent  words,  or  a  clear  intent 
shown  by  the  whole  instrument,  may  suffice.^* ^ 

§  390.  Measure  of  damages  for  failure  to  insure. — Where  a  ten- 
ant obligated  himself,  by  a  valid  contract,  to  keep  the  leased  premises 
insured  in  a  certain  sum  during  the  term  of  the  lease,  and  without 
sufficient  excuse  failed  to  do  so,  and  if  the  building  was  worth  the  sum 
mentioned  and  was  wholly  destroyed  by  fire,  the  extent  of  the  tenant's 
liability  would  be  the  amount  of  the  lessor's  damages,  that  is  the 
amount  for  which  insurance  was  to  be  taken  out.  It  was  argued  that 
the  tenant  received  no  consideration  for  agreeing  to  insure  the  prop- 
erty; that  it  contracted  to  pay  the  costs  of  insurance  as  part  of  the 
rental,  and  the  cost  of  the  premium  of  insurance  was  the  proper  meas- 
ure of  recovery.  The  court  refused  to  accept  the  proposition  that  the 
lessor's  damages  arising  out  of  the  breach  of  the  covenant  were  to  be 
measured  by  what  it  would  have  cost  the  lessee  to  secure  the  stipulated 
insurance;  and  pointed  out  that  the  consideration  for  the  lessee's 
promise  to  insure  was  the  obligation  of  the  lessor  to  rebuild  and  repair 
in  case  of  fire  and  the  suspension  of  rent  as  long  as  the  premises  re- 

•"^  Jacksonville     &c.     R.     Co.     v.  Merchants'  Ins.  Co.  v.  Mazange,  22 

Hooper,  160  U.  S.  514,  16  S.  Ct.  379,  Ala.  168. 

40  L.  Ed.  515.  ^*=Masury  v.  Southworth,  9  Ohio 

»"  Vernon  v.  Smith,  5  B.  &  Aid.  1;  St.  340. 


li 


431 


POR   INSURANCE. 


[§  390 


mained  uninhabitable.^®^  The  prevailing  rule  as  to  the  measure  of 
damages  for  the  breach  by  a  tenant  of  a  contract  to  insure  is  the  loss 
sustained  by  the  landlord,  not  exceeding  the  amount  of  the  policy 
which  the  tenant  covenanted  to  obtain.^®*  The  same  doctrine  as  to 
damages  is  applied  in  the  case  of  an  agent  or  factor  who  fails  to  in- 
sure goods  of  his  principal/*^  and  in  other  cases  where  a  person  is  re- 
sponsible for  a  loss  of  insurance.^®'  In  New  York  a  different  rule  of 
damages  is  adopted  as  between  landlord  and  tenant,  and  the  landlord 
can  only  recover  the  amount  which  would  have  paid  the  premiums  for 
the  required  insurance.  The  result  of  this  practice  is  that  the  lessor 
must  place  insurance  himself  in  case  the  lessee  fails  to  fulfil  his  cove- 
nant to  do  so.  According  to  this  view  damages  resulting  from  the 
burning  of  the  building  would  not  be  the  direct  and  natural  conse- 
quence of  the  breach  of  the  contract  to  insure.  The  natural  conse- 
quence of  the  failure  would  be  that  the  lessor  would  procure  another 
policy.^® ^  It  seems  clear  that  the  lessor  may,  if  he  choose,  proceed  to 
insure  the  premises  on  the  default  and  recover  the  amount  paid  in 


•«' Jacksonville  U.  P.  R.  &  N.  Co. 
v.  Hooper,  160  U.  S.  514.  16  S.  Ct. 
379,  40  L.  Ed.  515. 

=**  Douglass  v.  Murphy,  16  U.  C. 
Q.  B.  113. 

=^=Ela  V.  French,  11  N.  H.  356; 
Miner  v.  Tagert,  3  Bin.  (Pa.)  204; 
Perkins  v.  Washington  Ins.  Co.,  4 
Cow.  (N.  Y.)  645;  Morris  v.  Sum- 
merl,  2  Wash.  C.  C.  203;  De  Taslet 
v.  Crousellat,  1  Wash.  C.  C.  504; 
Smith  v.  Price,  2  F.  &  P.  748.  See 
also,  Bateman,  Ex  parte,  8  De  Gex 
M.  &  G.  263. 

°*'Gray  v.  Murray,  3  Johns.  Ch. 
(N.  Y.)  167;  Soule  v.  Union  Bank, 
45  Barb.  (N.  Y.)  Ill,  30  How.  Pr. 
105;  Ainsworth  v.  Backus,  5  Hun 
(N.  Y.)  414;  Hawkins  v.  Coult- 
hurst,  5  B.  &  S.  343. 

'^"National  &c.  Bank  v.  Hand, 
80  Hun  (N.  Y.)  584,  30  N.  Y.  S. 
508,89  Hun  (N.  Y.)  329,  35  N.  Y.  S. 
449.  The  New  York  court  went  on 
the  authority  of  Dodd  v.  Jones,  137 
Mass.  322,  where  a  contract  for  the 
sale  of  a  house  and  lot  contained 
a  promise  that  a  grantor  would 
assign  a  policy  of  insurance.    The 


policy  was  not  assigned,  the  prem- 
ises burned;  but  the  grantor  was 
only  held  liable  for  the  amount  of 
the  premiums.  The  court  said :  "The 
agreement  was  not  a  contract  of 
insurance,  but  of  sale;  and  the 
measure  of  damages  for  the  breach 
of  it  was  the  value  of  the  thing 
sold.  A  sum  that  would  procure  a 
similar  policy,  and  thus  place  the 
plaintiff  in  the  position  she  would 
have  been  in  had  there  been  no 
breach  of  the  contract,  would  in- 
demnify her,  and  she  cannot  elect 
to  go  without  insurance,  and  hold 
the  defendant  as  insurer.  Damages 
resulting  from  the  burning  of  the 
building  are  not  the  direct  and  nat- 
ural consequence  of  the  breach  of 
the  defendant's  contract,  and  could 
not  have  been  contemplated  by  the 
parties  as  included  in  it.  The 
natural  consequence  of  the  failure 
of  the  defendant  to  perform  his 
contract  would  be  that  the  plaintiff 
would  procure  another  policy  of  in- 
surance, and  she  can  not  charge 
the  defendant  with  the  conse- 
quences of  her  neglect  to  do  that." 


§  391]  COVEXAXTS  IX  LEASES.  433 

premiums  from  the  lessee  or  from  his  surety.  But  when  the  parties 
agreed  that  the  lessor  should  attend  to  the  taking  out  of  the  insurance 
for  the  lessee,  that  would  be  more  like  a  voluntary  loan  from  the 
lessor  of  the  amount  of  the  premiums,  and  the  surety  would  not  be 
liable  to  repay  such  amount.^^^  If  the  lessee  collects  the  insurance 
after  a  loss  and  fails  to  covenant  to  rebuild  with  the  proceeds,  the 
lessor  has  been  allowed  to  recover  the  amount  of  the  policy  from 
him.^«» 

VIII.     For  Repairs. 

§  391.  A  covenant  by  a  lessee  to  repair  has  been  regarded  as  one 
of  the  usual  covenants  in  a  lease,  so  that  under  an  agreement  to 
execute  a  lease  with  the  usual  covenants  it  has  been  held  proper  to 
insert  a  covenant  on  the  part  of  the  lessee  to  repair.^^"  "WTiere  an 
agreement  for  a  lease  expressly  provides  for  a  covenant  by  the  lessee 
to  repair,  he  was  held  not  to  be  entitled  to  have  excepted  from  the 
covenant  "damage  by  fire  or  tempest."^^^  Although  the  lease  which 
contains  a  covenant  to  repair  is  for  some  cause  invalid  as  a  lease  and 
cannot  be  given  in  evidence,  yet  if  the  lessee  enters  and  a  year  to 
year  tenancy  is  created,  he  will  be  bound  by  the  agreement  in  this 
respect.  It  cannot  be  taken  as  a  proposition  of  law  that  a  mere 
verbal  covenant  or  agreement  to  return  the  premises  in  the  same  con- 
dition as  taken,  is  not  sufficient  to  fix  the  liability.  This  would  assume 
that  such  a  contract  must,  in  all  cases,  be  in  writing.  Agreements 
to  repair  or  rebuild  are  agreements  for  work,  labor,  and  materials 
and  are  not  required  to  be  in  writing.  At  common  law  a  tenant  for 
years  was  entitled  to  necessary  timber  for  repairing  houses,  fences, 
etc.,  if  there  were  no  stipiilation  to  the  contrary,  but  so  far  as  the 
parties  have  themselves  stipulated  in  the  lease  for  repairs,  the  court 
must  look  to  their  express  contract;  an  unqualified  stipulation  to  re- 
pair binding  the  tenant  not  only  to  make  the  repairs,  but  to  find 
the  materials.^^*  However,  the  landlord  may  contract  expressly  to 
furnish  materials,  but,  in  such  case,  his  failure  to  perform  such  con- 
tract would  not  relieve  the  tenant  from  his  express  covenant  to  make 
the  repairs.  He  is  under  obligation  to  proceed  with  the  repairs,  but 
may  charge  the  cost  of  materials  up  against  the  landlord  and  deduct 
it  from  the  rent.^^^ 

=^  Woodbridge    v.    Richardson,    2  ^"  Sharp  v.  Milligan,  23  Beav.  419. 

Thomp.  &  C.   (N.  Y.)   418.  ^"  Harris  v.  Goslin,  3  Harr.  (Del.) 

^^  Hayes     v.     Ferguson,     15     Lea  340. 

(Tenn.)   1.  "os^ood  v.  Sharpless,  174  Pa.  St. 

=»»  Kendall  v.  Hill,  6  Jur.  N.  S.  968.  588,  34  Atl.  319,  321. 


I 


433 


FOR   REPAIRS. 


[§•  393 


A  provision  in  a  will  which  requires  a  tenant  to  keep  a  property 
in  good  repair,  and  contains  no  exception  relieving  him  from  the  duty 
to  make  repairs  occasioned  by  wear  and  tear  or  the  elements,  or  other 
named  reason,  obliges  the  tenant  to  maintain  the  property  in  good 
repair,  without  regard  to  the  cause  of  dilapidation.^®^  So,  under  a 
general  covenant  to  repair,  the  lessee's  liability  is  not  confined  to 
cases  of  ordinary  and  gradual  decay,  but  extends  to  accidental  in- 
juries.^®''  A  covenant  by  a  sub-tenant  to  repair  is  not  a  mere  cove- 
nant of  indemnity,  but  renders  him  liable  to  his  lessor  whether  the 
latter  has  paid  the  original  landlord  or  not.^®* 

§  392.  It  is  the  established  rule  of  the  common  law  that  an  ex- 
press covenant  to  repair  binds  the  covenantor  to  make  good  any  in- 
jury which  human  power  can  remedy,  even  if  caused  by  storm,  flood, 
fire,  inevitable  accident,  or  the  act  of  a  stranger.^®®  The  foundation 
of  the  rule  is  the  doctrine  that  a  person  who  has  bound  himself  un- 
conditionally cannot  be  relieved,  and  that  a  covenant  to  repair  is 
equivalent  to  a  covenant  to  rebuild.^""    Although  a  man  may  be  ex- 


^'^Ashby  V.  Ashby,  (N.  J.)  46  Atl. 
522. 

^^'  Kling  V.  Dress,  28  N.  Y.  Super. 
Ct.  521,  525;  Cohn  v.  Hill,  9  Misc. 
(N.  Y.)    326. 

=°«  Smith  v.  Coe,  1  Sweeny  (N.  Y.) 
332. 

^°' California:  Polack  v.  Pioche, 
35  Cal.  416.  Illinois:  Barnhart  v. 
Boyce,  102  111.  App.  172;  Reno  v. 
Mendenhall,  58  111.  App.  87.  Iowa: 
David  V.  Ryan,  47  Iowa  642.  Ken- 
tucky: Bohannons  v.  Lewis,  3  T.  B. 
Mon.  (Ky.)  376,  380;  Proctor  v. 
Keith,  12  B.  Mon.  (Ky.)  252.  Mas- 
sachusetts: Leavitt  v.  Fletcher,  10 
Allen  (Mass.)  119.  Mississippi: 
Fowler  v.  Payne,  49  Miss.  32.  Mis- 
souri: O'Neil  V.  Flanagan,  64  Mo. 
App.  87.  Ohio:  Linn  v.  Ross,  10 
Ohio  412.  Pennsylvania:  Hoy  v. 
Holt,  91  Pa.  St.  88,  36  Am.  St.  659; 
Lincoln  Trust  Co.  v.  Nathan,  175 
Mo.  32,  74  S.  W.  1007.  New  York: 
Beach  v.  Grain,  2  N.  Y.  86.  United 
States:  Dermott  v.  Jones,  2  Wall. 
(U.  S.)  1,  7.    South  Carolina:  Mitch- 

JoNES  L.  &  T.— 28 


ell  V.  Nelson,  13  S.  Car.  105.  Eng- 
lish: Paradine  v.  Jane,  Aleyn  26; 
Walton  V.  Waterhouse,  3  Saund. 
422a,  n.;  Bullock  v.  Dommitt,  6 
Term.  R.  650;  Green  v.  Eales,  2 
A.  &  E.  (N.  S.)  225,  42  E.  C.  L.  648; 
Brecknock  Co.  v.  Pritchard,  6  Term 
R.  750. 

«""  Fowler  v.  Payne,  49  Miss.  32; 
Leavitt  v.  Fletcher,  10  Allen 
(Mass.)  119;  Allen  v.  Culver,  3 
Denio  (N.  Y.)  284;  Bigelow  v.  Col- 
lamore,  5  Cush.  (Mass.)  226;  Phil- 
lips V.  Stevens^  16  Mass.  238;  Wal- 
ton V.  Waterhouse,  2  Saund.  422a, 
n.;  Abby  v.  Billups,  35  Miss.  618; 
Bullock  v.  Dommitt,  6  Term  R.  650; 
Meyers  v.  Myrrell,  57  Ga.  516.  In 
Wattles  V.  South  Omaha  &c.  Co.,  50 
Neb.  251,  this  doctrine  of  construc- 
tion was  severely  criticized  and  with 
the  aid  of  a  statute  repudiated.  The 
reasoning  of  the  court  appears  in 
the  following  extract  from  the  opin- 
ion: "No  one  can  find  fault  with 
the  principle  that  a  man  should  be 
compelled  to  perform  what  he  has 


393] 


COVENANTS   IN   LEASES. 


434 


cused  from  a  duty  imposed  on  him  by  law,  if  he  is  disabled  from  per- 
forming it  without  any  fault  of  his  own;  yet  when,  by  his  own  con- 
tract, he  creates  a  duty  or  charge  upon  himself,  he  is  bound  to  make 
it  good,  notwithstanding  any  accident  by  inevitable  necessity.^''^  If 
it  be  urged  that  this  is  a  hardship  upon  the  lessee,  the  answer  is  that 
it  was  his  own  folly  to  not  stipulate  against  such  inevitable  conse- 
quences.^*'^ So  the  covenant  of  a  lessee  or  lessor  to  repair  is  not  dis- 
charged by  the  destruction  of  the  premises  by  lightning,  fire,  or 
wind.®"^  However,  a  nice  distinction  between  repairing  and  rebuild- 
ing was  made  in  a  case  where  a  tenant  had  covenanted  to  make 
all  needful  repairs  at  his  own  expense  "except  the  putting  on  of  a  new 
roof,  new  doors  and  new  floors."  As  long  as  the  old  roof  could  be 
repaired  and  no  new  roof  was  needed  or  called  for,  the  expense  of  re- 
pairs could  not  be  charged  against  the  landlord,  but  must  be  paid 
by  the  lessee  under  his  covenant.*"** 

The  statement  of  the  rule  is  sometimes  put  in  the  form  that  under 
an  express  covenant  to  keep  and  leave  the  premises  in  repair,  the 
lessee  is  bound  to  make  good  any  injury  from  any  cause  not  resulting 
from  the  act  or  neglect  of  the  landlord.®**^   Yet,  where  a  lessee  cove- 


promised;  but,  with  all  due  respect 
to  the  supreme  court  of  Massachu- 
setts, it  seems  to  us  that  the  court 
ignored  the  entire  issue.  The  ques- 
tion there  was  not  whether  the  les- 
see was  obliged  to  perform  a  cov- 
enant he  had  made,  but  the  ques- 
tion was  what  covenant  he  had 
made;  that  is,  whether  his  covenant 
to  repair  and  keep  in  repair  the 
demised  premises  included  within 
it  a  covenant  on  his  part  to  rebuild 
the  buildings  on  the  leased  prem- 
ises if  they  should  be  destroyed. 
But  in  that  case,  as  in  the  other 
cases  cited,  and  in  every  case  that 
we  have  been  able  to  find  which 
supports  the  contention  of  the  ap- 
pellee here,  it  was  taken  for  granted 
that  the  rule  of  common  law  was 
that  a  covenant  by  a  lessee  to  repair 
was  equivalent  to  and  involved  a 
covenant  to  rebuild.  Assuming, 
however,  that  such  was  and  is  the 
rule  of  construction  at  common 
law,   are   we   bound   by   that    rule? 


.  .  .  What  did  the  parties  to  this 
contract  understand  and  intend  by 
the  terms  'repair'  and  'keep  in  re- 
pair?' These  words  'repair'  and 
'keep  in  repair'  are  not  technical 
words,  nor  should  they  be  given  a 
technical  or  strained  interpreta- 
tion. They  should  receive  their  ordi- 
nary interpretation.  To  repair,  as  it 
is  ordinarily  used,  means  to  amend, 
not  to  make  a  new  thing,  but  to  re- 
fit, to  make  good  or  restore  an  exist- 
ing thing.  When  we  speak  of  repair- 
ing a  thing,  the  very  expression  pre- 
supposes something  in  existence  to 
be  repaired." 

""1  Walton  V.  Waterhouse,  2  Saund. 
442a,  n. 

^"^  Bohannons  v.  Lewis,  3  T.  B. 
Mon.   (Ky.)   376,  380. 

""'Flynn  v.  Trask,  11  Allen 
(Mass.)  550;  Chit.  Contr.  (10  Am. 
Ed.)   803. 

"<»*  Powers  V.  Cope,  93  Ga.  248,  18 
S.  E.  815. 

•="=  Eisenhart    v.    Ordean,    3    Colo. 


I 


435  POR  REPAIRS,  [§   393 

nanted  to  deliver  up  the  premises  in  good  order  and  condition,  he  was 
held  not  responsible  for  a  freshet  which  washed  away  a  road  along 
a  river  so  that  it  could  not  be  repaired."^*'  In  this  case  the  lessee 
could  neither  prevent  the  damage  by  previous  precautions  nor  repair 
it  by  subsequent  efforts.  A  covenant  in  a  lease  that  the  lessee  will 
maintain  buildings  in  as  good  condition  and  repair  as  the  same 
are  now  in  and  return  the  same  to  the  lessor  at  the  expiration  of  the 
lease,  in  as  good  condition  as  the  same  now  are,  reasonable  wear  and 
tear  from  ordinary  use  alone  excepted,  imposes  the  duty  on  the  lessee 
to  rebuild  in  case  of  the  destruction  of  the  buildings  by  accidental 
gpe  607  "\Yhere  a  tenant  covenants  to  build  and  leave  in  repair  and  does 
build  and  the  houses  are  destroyed  by  fire,  this  does  not  discharge 
him.    He  must  rebuild  or  pay  the  value  of  the  building.*"** 

However,  any  positive  act  of  prevention  by  the  covenantee,  which 
prevents  the  covenantor  from  performing,  will  release  the  latter 
from  liability.  A  lessor  might  discharge  his  lessee  from  his  duty  of 
rebuilding  a  part  of  the  premises  by  undertaking  to  do  it  himself. 
If  the  lessor  had  occasioned  the  breach,  that  would  be  an  answer  to  a 
complaint  founded  on  that  breach  on  the  ground  that  it  was  the  act 
of  the  lessor  and  not,  as  charged,  the  act  of  the  lessee.^**^ 

§  393.  Kesponsibility  for  rebuilding  rests  on  contract. — "The  les- 
see is  not  responsible  to  the  lessor  for  the  accidental,  casual  destruc- 
tion by  fire  of  the  property  demised  unless  by  his  covenant  he  has  made 
himself  so.^^°  In  construing  covenants,  the  cardinal  rule  is  the  in- 
tention of  the  parties ;  ...  if  there  is  not  an  express  stipulation 
to  rebuild  or  restore  edifices  and  structures  destroyed  by  casualty  or 
some  covenant  which  is  equivalent  thereto,  such  as  a  covenant  to  'up- 
hold and  repair'  or  'to  repair,'  then  the  loss  must  fall  upon  the  rever- 
sioner and  not  upon  the  lessee.  And,  lastly,  the  covenant  to  redeliver  or 
restore  to  the  lessor  in  the  same  plight  and  condition,  usual  wear 
and  tear  excepted  (or  other  words  of  like  import),  does  not  bind  the 

App.    162,    32    Pac.    495;     Allen    v.  618;    Cline  v.  Black,  4  McCord    (S. 

Howe,    105    Mass.    241;    Hallett    v.  Car.)  431;  Walton  v.  Waterhouse,  2 

Wylie,  3  Johns.  (N.  Y.)  44;  AVeigall  Saund.  422a,  n. 

V.  Waters,  6  Term  R.  488.  "'^  Pasteur  v.  Jones,  Conf.  Rep.  (N. 

"•^Waite  V.  O'Nell,  76  Fed.  408.  Car.)   194. 

607  Ely   V.    Ely,    80    111.    532;    Arm-  "»''' McHenry  v.  Marr,  39  Md.  510; 

strong  V.   Maybee,  17  Wash.   24,   48  West  v.  Blakeway,  2  M.  &  G.  729,  40 

Pac.    737;    Reno   v.    Mendenhall,    58  E.  C.  L.  828. 

111.  App.  87;   Phillips  v.  Stevens,  16  ""Walnscott    v.    Silvers,    13    Ind. 

Mass.  238;  Abby  v.  Billups,  35  Miss.  497. 


§■   393]  COVENANTS    IX    LEASES.  436 

covenantor  to  rebuild  in  case  of  casual  destruction  by  fire  or  impose 
the  burden  of  loss  upon  him."^^^  Where  a  tenant  agrees  to  redeliver 
the  premises  in  a  prescribed  condition  of  good  order,  it  is  a  ques- 
tion of  intention  whether  he  intended  to  become  bound  to  rebuild  in 
case  of  casual  destruction  by  fire.  An  attendant  circumstance  should 
be  examined  and  the  probable  intention  of  the  parties  discovered.®^'' 
On  the  face  of  the  contract  there  is  the  express  obligation  on  the 
part  of  the  lessees  to  deliver  up  "the  house  with  the  lots  and  appur- 
tenances thereunto  attached"  at  the  expiration  of  the  term.  There 
is  no  obligation  to  repair,  but  simply  "to  deliver  up,"  meaning  to 
surrender  back  to  the  lessor.  The  decisions  on  this  subject  make  a 
distinction  between  an  obligation  "to  repair  and  deliver  up"  and  one 
simply  "to  deliver  up."  Whilst  the  former  binds  the  obligor  to  re- 
build in  case  of  loss  by  fire  during  the  term,  the  latter  is  construed 
simply  as  an  obligation  against  holding  over;  and  the  lessee  is  not 
bound  to  rebuild  in  case  the  buildings  are  destroyed.®^^  An  agree- 
ment merely  to  leave  buildings  erected  on  the  premises  does  not  bind 
lessee  to  rebuild  them  when  they  are  destroyd  by  fire  or  give  lessor 
any  claim  to  insurance  taken  out  by  lessee  for  his  own  benefit.*^^* 
But  an  express  agreement  to  deliver  up  the  premises  at  the  end  of 
the  term,  in  as  good  order  and  condition,  reasonable  use  and  un- 
avoidable casualties  excepted,  as  when  they  were  received  from  the 
lessor,  binds  the  lessee  to  make  repairs.  Whatever  repairs  might  be 
necessary  to  keep  the  premises  in  good  repair  must  be  made  by  the 
lessee  under  such  an  agreement  ;®^^  and  so,  if  an  exception  is  not  made 
in  case  of  destruction  by  fire,  a  lessee  would  be  bound  by  such  a 
provision  to  rebuild  structures  destroyed  by  fire.  But  such  was  not 
the  result  reached  by  the  Texas  court,  where  a  covenant  to  deliver  up 
in  good  order  at  the  end  of  the  term  without  an  undertaking  to  re- 
pair, was  held  not  to  make  the  tenant  liable  to  rebuild  in  case  of 
destruction  by  fire.®^^  However,  a  covenant  in  a  lease  that  the  tenant 
shall  keep  the  premises  in  good  order,  and  deliver  the  same  in  good 

«"  Levey  v.   Dyess,   51   Miss.   501;         «"Nave    v.    Berry,    22    Ala.    382; 

Seevers  v.  Gabel,  94  Iowa  75,  62  N.  Phillips  v.   Stevens,   16   Mass.   238; 

W.  669;  Wainscottv.  Silvers,  13  Ind.  Maggort    v.    Hansbarger,    8    Leigh 

497;      Maggort     v.     Hansbarger,     8  (Va.)    532;    Warner  v.    Hitchins,    5 

Leigh   (Va.)   532;   Fowler  v.  Bott,  6  Barb.  (N.  Y.)  666. 
Mass.   63;    Ellis  v.   Welch,   6   Mass.         "^^Clemson    v.    Trammell,    34    111. 

246;   Hallett  v.  Wylie,  3  Johns.    (N.  App.  414. 

Y.)  44;  Warner  v.  Hitchins,  5  Barb.         °'=  Jaques  v.  Gould,  4  Cush.  (Mass.) 

(N.  Y.)  666.  384. 

»"  Halbut  V.  Forrest  City,  34  Ark.         *''  Howeth    v.    Anderson,    25    Tex. 

246.  557;  Miller  v.  Morris,  55  Tex.  412. 


437  FOR   REPAIRS.  [§    394 

order  as  "they  are  now/^  on  the  expiration  of  the  lease,  binds  the 
tenant  to  rebuild  in  case  the  premises  should  be  destroyed  by  fire.^^^ 

The  Mississippi  Code  provides  that  in  the  absence  of  an  express 
covenant  to  restore  buildings  destroyed  by  fire  without  fault  on  his  part 
a  tenant  is  not  bound  to  do  so;  and  the  covenant  to  leave  building 
in  good  repair  is  not  equivalent  to  an  express  covenant.  Where  the 
premises  leased  were  a  farm,  and  a  valuable  gin-house  thereon  was 
destroyed  by  fire,  it  was  held  that  by  force  of  this  statute  rent  would 
be  abated  in  proportion  as  the  value  of  the  premises  was  lessened. "^^^ 

Some  covenants  in  a  lease  do  not  put  a  hard  and  fast  duty  on  the 
covenantor.  Thus,  in  a  five-year  lease  of  farming  lands  a  lessee  cove- 
nanted to  grow  a  good  and  substantial  hedge  fence  by  the  close  of  the 
term.  This  only  imposed  a  duty  on  him  to  plant  and  faithfully  to 
cultivate  it  during  the  term.    He  did  not  guarantee  a  good  fence.''^® 

But,  on  the  other  hand,  it  has  been  held  that  a  covenant  in  the 
lease  of  a  farm  to  keep  fences  in  repair  is  equivalent  to  one  to  leave 
them  so,  and  binds  lessee  to  repair  after  destruction  by  an  unpre- 
cedented flood. ^'^  Moreover,  a  covenant  to  deliver  a  certain  number 
of  cattle  and  sheep  at  end  of  term  takes  effect  as  an  absolute  obli- 
gation. It  is  not  sufficient  to  show  that  by  reasonable  care  the  lessee 
could  not  acquire  so  many  during  the  term.*^^^ 

§  394.  The  phrase  "unavoidable  casualty"  is  in  common  use  in 
leases  in  this  country  and  has  a  well-settled  and  understood  meaning. 

It  does  not  signify  a  mere  want  of  repair,  neither  does  it  include  any 
injuries  which  may  happen  by  reason  of  the  common  and  ordinary 
use  of  the  estate  leased  or  of  adjoining  premises.  The  term  has  a 
much  more  restricted  meaning.  By  a  strict  definition,  as  applied  to 
the  subject-matter,  it  signifies  events  or  accidents  which  human  pru- 
dence, foresight  and  sagacity  cannot  prevent.*'^ ^  The  bursting  of 
boilers  at  low  pressure  steam  was  held  to  be  an  "unavoidable  cas- 
ualty." It  was  proper  to  interpret  the  words,  not  according  to  their 
strict  and  philosophical  signification,  which  might  defeat  the  inten- 
tion of  the  parties,  but  rather  in  conformity  with  their  popular,  every- 
day acceptation,  and,  in  accordance  with  such  an  interpretation,  there 

""  Schmidt  v.  Pettit,  8  D.  C.  179.  ^-^  More,  Estate  of,  121  Cal.  609,  54 

'^«  Taylor  v.  Hart,  73  Miss.  22,  18  Pac.  97. 

So.  546.  ""  Welles     v.      Castles,      3      Gray 

"^''Gilchrist  v.  Gilchrist,  76  111.  281.  (Mass.)   323;   Tays  v.  Ecker,  6  Tex. 

"="'  Spafford  v.  Meagley,  8  W.  L.  J.  Civ.  App.  188,  24  S.  W.  1030. 
(Ohio)   323;  Proctor  v.  Keith,  12  B. 
Mon.  (Ky.)   252. 


§  395]  COVENANTS  IN  LEASES.  438 

was  in  a  rupture  of  the  boilers  a  degree  of  unexpectedness,  as  of  some- 
thing unforeseen  and  not  contemplated  in  the  making  of  the  con- 
tract, which  makes  it  proper  to  regard  it  as  an  unavoidable  cas- 
ualty."-^ If  the  negligence  of  the  tenant  was  a  proximate  cause  of 
the  injury  he  would  not  be  protected  by  a  clause  exempting  him  from 
liability  for  damage  to  the  premises  '^by  fire  or  other  unavoidable 
accident  not  happening  through  the  neglect  of  the  lessee."  The  ques- 
tion whether  it  was  negligence  to  leave  an  awning  down  during  a  wind 
storm  was  properly  left  to  the  jury.  The  contention  that  it  should 
have  been  decided  by  the  court  in  favor  of  the  plaintiff  as  a  matter 
of  law  was  without  foundation.*'^*  So  it  was  held  in  another  case  that 
a  cellar  window  broken  by  a  stone  accidentally  kicked  by  a  passing 
team  is  not  broken  by  inevitable  accident.  The  kicking  of  the  stone, 
so  far  as  the  lessee  was  concerned,  may  have  been  inevitable,  but  not 
the  breaking  of  the  window,  which  might  have  been  protected  by  a 
blind  or  wire  netting.  The  burden  of  proving  that  the  window  was 
broken  by  inevitable  accident  was  on  the  lessee.**^^ 

Another  expression  used  in  this  connection  with  a  similar  meaning 
is  "fortuitous  event,"  which  has  been  defined  to  be  something  which 
happens  by  a  cause  that  cannot  be  resisted.  It  was  held  that  the 
inability  of  lessees  to  operate  a  plantation  for  the  third  year  of  their 
lease,  on  account  of  their  financial  failure  and  the  fact  that  their 
creditors  took  possession  of  their  movable  property,  must  be  deemed 
to  be  the  result,  of  their  own  improvidence  and  could  not  properly  be 
called  a  fortuitous  event."-" 

§  395.  "Damages  by  the  elements"  which  are  ordinarily  excepted 
from  a  lessee's  covenant  to  keep  in  repair,  cover  destruction  by  fire 
occurring  without  fault  or  negligence  in  the  lessee.  Where  lessee 
covenants  to  return  the  premises  in  like  condition  as  when  taken 
"damages  by  the  elements  excepted,"  it  was  held  that  this  expression 
was  sufficiently  broad  to  release  lessee  from  liability  when  the  premises 
were  destroyed  by  fire  which  originated  without  negligence  on  his  part. 
The  court  adopted  a  popular  meaning  for  this  expression."-'^  The 
terms  "the  elements"  and  "damage  by  the  elements"  are  somewhat 
uncertain  and  indefinite  expressions,  and  very  little  aid  will  be  de- 

«==  Phillips  V.  Sun  Dyeing  &c.  Co.,  "='-  Taylor  v.  Syme,  162  N.  Y.  513, 

10  R.  I.  458.  57  N.  E.  83. 

^-^  Miles  V.  Stanke,  114  Wis.  94,  89  '='  Van  Wormer  v.  Crane,  51  Mich. 

N.  W.  833.  363. 

"-"  Peck  V.  Scoville  Mfg.  Co.,  43  111. 
App.  360. 


439  FOR  REPAIRS.  [§■  396 

rived  from  resorting  to  any  technical  or  scientific  discussion  of  the 
meaning  of  the  word  "elements."  Such  language  refers  only  to  some 
sudden,  unusual,  or  unexpected  action  of  the  elements,  such  as  floods, 
tornadoes  or  the  like, — extraordinary  disasters,  not  anticipated  by 
either  party,  the  efficient  cause  of  which  originated  after  the  term 
began.*'^^ 

The  clause  "damage  by  fire,  wind  or  water  excepted,"  was  held  to 
include  extraordinary  damage  only  where  the  lease  also  contained  a 
specific  covenant  for  the  lessee  to  make  at  his  own  expense  all  neces- 
sary repairs.  Extraordinary  damage  from  fire,  wind,  or  water  would 
be  unusual,  partial,  or  total  destruction.  "Necessary  repairs"  were 
held  to  mean  necessary  to  keep  that  property,  situated  as  it  was,  in  as 
good  condition  as  it  was  then — the  condition  in  which  the  lessee  agreed 
to  return  it.^^^ 

§  396.  The  external  parts  of  premises  are  those  which  form  the 
inclosure  of  them,  and  beyond  which  no  part  of  them  extends;  and 

it  is  immaterial  whether  those  parts  are  exposed  to  the  atmosphere,  or 
rest  upon  and  adjoin  some  other  building  which  forms  no  part  of  the 
premises  let.  The  expression  "outside  of  a  building"  in  a  covenant 
by  a  lessor  to  repair  includes  the  whole  outer  shell  of  the  building, 
or  external  inclosure  of  roof  and  sides.  The  necessary  repairs  on  the 
outside  are  those  which  will  make  the  building  outwardly  complete.''^*' 

An  undertaking  by  a  lessee  to  bear  one-third  of  expense  of  "out- 
side" repairs  of  a  church  and  belfry,  was  construed  to  mean  that  the 
entire  belfry  was  a  part  of  the  outside  of  the  church.**^ ^ 

In  New  York  it  is  provided  that  where  any  building  is  so  injured 
as  to  become  untenantable,  a  tenant  may  in  the  absence  of  an  express 
covenant  to  the  contrary  surrender  it  and  avoid  further  liability  for 
rent.  A  covenant  to  make  "all  inside  and  outside  repairs"  is  not  an 
express  agreement  against  the  right  conferred  by  this  statute.  These 
words  import  simply  a  general  covenant.  Under  this  clause  the 
lessee  was  bound  to  make  all  ordinary  repairs,  but  was  not  called  upon 
to  make  those  which  were  extraordinary.  To  give  these  words  the 
force  and  meaning  contended  for  would  make  the  lessee  liable  to  re- 
build in  case  of  complete  destruction  of  the  premises.  Under  such  a 
construction  there  could  be  no  other  limitation  upon  the  liability  of 

"^Harris  v.  Corlies,  40  Minn.  106,  (Mass.)  119;  Green  v.  Eales,  2  A.  & 

41  N.  W.  940.  E.  (N.  S.)   225,  42  E.  C.  L.  648. 

"="  Waddell  v.  De  Jet,  76  Miss.  104,  ""  First  Cong.  &c.  Soc.  v.  Roches- 

23  So.  437.  ter,  66  Vt.  501,  29  Atl.  810. 

"'"Leavitt    v.    Fletctier,    10    Allen 


§  397]  COVENANTS  IN  LEASES.  440 

the  lessee.     Such  an  interpretation  is  neither  reasonable  nor  neces- 
sary.®*^ 

§  397.  A  general  covenant  to  repair  must  be  construed  to  have 
reference  to  the  condition  of  the  premises  at  the  time  when  the  cove- 
nant begins  to  operate.®^*  "Good  tenantable  repair"  has  been  defined 
to  be  "such  repair  as  having  regard  to  the  age,  character,  and  locality 
of  the  house  would  make  it  reasonably  fit  for  the  occupation  of  a  rea- 
sonable-minded tenant  of  the  class  who  would  be  likely  to  take  it."®** 
A  covenant  to  keep  leased  premises  in  repair  only  imposes  upon  the 
tenant  the  obligation  to  keep  the  premises  in  as  good  repair  as  when 
the  agreement  was  made.  Covenants  to  keep  "in  repair"  and  to 
keep  "in  as  good  repair  as  they  now  are,"  are  held  to  amount  to  the 
same  thing.®* ^  So,  where  an  old  house  is  rented  with  the  usual 
covenants  to  keep  the  same  in  repair,  the  covenantor  will  not  be 
bound  to  put  it  in  an  improved  state,  nor  to  avert  the  consequences 
of  the  elements,  but  only  to  keep  it  in  a  state  in  which  it  was  at 
the  time  of  the  demise  by  timely  expenditure  of  money  and  care."®** 
But  any  direct  injury  to  the  freehold  by  an  act  of  the  tenant  would 
be  a  breach  of  a  contract  to  deliver  up  the  premises  in  like  condition 
as  when  received.®*'' 

In  one  case  a  tenant  covenanted  to  bear  all  the  expenses  of  repair- 
ing or  improving  the  premises  during  the  term.  The  building  de- 
mised was  condemned  by  the  city  authority,  who  ordered  the  walls 
to  be  rebuilt.  It  was  held  that  the  expense  of  rebuilding  the  walls 
must  be  borne  by  the  lessee  under  this  covenant.  The  court  say  that, 
in  the  absence  of  express  contract,  it  would  not  have  been  the  duty  of 
lessee  to  make  other  repairs  than  such  as  were  necessary  to  preserve 
the  property  in  the  condition  it  was  when  he  rented,  less  such  deteriora- 
tion as  time  and  ordinary  use  would  cause;  here  his  obligation  does 
not  rest  alone  on  the  duty  to  repair  which  the  law  imposes  on  every 
tenant,  but  upon  his  express  contract  made  with  a  knowledge  of  the 
condition  of  the  house  at  the  time  he  rented.  The  word  means  to 
restore  to  a  sound  or  good  state  after  decay,  injury,  dilapidation,  or 

=^=May  V.  Gillis,  169  N.  Y.  330,  62  &c.  R.  Co.,  135  Mo.  173,  36  S.  W.  602; 

N.  E.  385.  Stultz  V.  Locke,  47  Md.  562;  Middle- 

•"^  Walker  v.  Hatton,  10  M.  &  W.  kauff  v.  Smith,  1  Md.  329. 

249,  258.  «="  Gutteridge  v.  Munyard,  7  C.  & 

^^^Proudfoot  v.  Hart,  25  Q.  B.  D.  P.  129;  Stultz  v.  Locke,  47  Md.  562; 

42,  per  Lopes,  L.  J.  Harris  v.  Goslin,  3  Harr.  (Del.)  338. 

^^  St.  Joseph  &c.  R.  Co.  v.  St.  Louis  ""  Murray  v.  Moross,  27  Mich.  203. 


I 


441  FOR  REPAIRS.  [§397 

partial  destruetion.^^^  Even  though  a  covenant  stipulates  that  prem- 
ises shall  be  put  in  perfectly  good  repair,  this  does  not  oblige  the  cove- 
nantor to  reconstruct  out  of  a  different  kind  of  materials."^^ 

A  covenant  to  keep  in  "good  repair"  is  much  the  same  as  a 
covenant  to  keep  in  "tenantable  repair."  So  there  is  a  case  deciding 
that  in  order  to  satisfy  the  tenant's  obligation  under  such  a  contract 
it  was  not  enough  for  him  to  deliver  up  the  premises  in  the  same 
condition  of  repair  as  when  he  took  them;  he  must  deliver  them  up 
in  good  repair,  even  if  they  were  not  in  good  repair  when  the  tenancy 
began.  Parke,  B.,  said  in  the  course  of  his  judgment:  "This  is  a 
contract  to  keep  the  premises  in  good  repair  as  old  premises,  but  that 
cannot  justify  the  keeping  them  in  bad  repair  because  they  happened 
to  be  in  that  state  when  the  defendant  took  them."^***  Where  the 
covenant  of  the  lessee  required  him  to  "preserve  the  property  from 
deterioration"  he  was  thereby  bound  to  do  something  with  respect  to 
the  property  to  off-set  the  natural  wear  and  damage  by  the  ele- 
ments.^*^  And  a  covenant  to  deliver  the  premises  at  the  expiration 
of  the  term,  "in  good  tenantable  repair  in  every  respect,"  binds  the 
covenantor  to  restore  the  premises  in  such  tenantable  condition,  with- 
out any  reference  to  the  condition  in  which  he  received  them.*'*^ 
Leaving  ashes  and  rubbish  has  been  held  to  be  no  breach  of  an  agree- 
ment peaceably  to  yield  possession  of  the  premises  in  good  tenantable 
repair.''*^ 

"Habitable"  means  "in  such  a  condition  as  to  be  reasonably  fit  for 
tenants  to  use  for  such  purposes  as  the  premises  were  reasonably  and 
naturally  adapted  and  for  such  uses  as  they  might  be  reasonably 
put."«** 

A  covenant  to  repair  only  puts  the  lessee  under  obligation  to  make 
such  repairs  as  were  necessary  for  his  own  use  of  the  premises,  and 
does  not  render  him  liable  to  put  them  in  first-class  condition.''*^  So, 
the  principle  has  been  laid  down  that,  if  a  tenant  takes  a  house  which 
is  of  such  a  kind  that  by  its  own  inherent  nature  it  will  in  course 

'^  Martinez  v.  Thompson,  80  Tex.  ''^  Scott  v.  Haverstraw  &c.  Co.,  135 

568,  16  S.  W.  334.  N.  Y.  141,  31  N.  B.  1102. 

*^'Ardesco  Oil  Co.  v.  Richardson,  «^  Brashear  v.   Chandler,  6  T.   B. 

63  Pa.  St.  162.  Mon.   (Ky.)   150. 

'*»  Payne  v.  Haine,  16  M.  &  W.  541.  ""  Thorndike  v.  Burrage,  111  Mass. 

So   in   Heintze  v.   Erlacher,   1   City  531. 

Court    (N.   Y.)    465,   a  covenant   to  '^  Goss  &c.  Co.  v.  Oviatt,  60   Mo. 

keep   in   repair  was  held   to  oblige  App.  565. 

the  covenanter  to  put  the  premises  "=  White  v.   Albany   Ry.,   17   Hun 

in  repair  if  they  were  in  such  a  state  (N.  Y.)  98. 
that  they  needed  it. 


§'  398]  COVENANTS  IX  LEASES.  442 

of  time  fall  into  a  particular  condition,  the  effects  of  that  result  are 
not  within  the  tenant's  covenant  to  repair.  However  large  the  words 
of  the  covenant  may  be,  a  covenant  to  repair  a  house  is  not  a  cove- 
nant to  give  a  different  thing  from  that  the  tenant  took  when  he  en- 
tered into  the  covenant.  He  has  to  repair  that  thing  which  he  took ; 
he  is  not  obliged  to  make  a  new  and  different  thing.''*®  Moreover,  if 
in  the  course  of  making  repairs,  changes  in  the  original  construction 
are  made  which  improve  the  premises,  the  tenant  is  not  bound  to  bear 
the  cost  of  that  part  of  the  work.®*^  A  covenant  by  a  tenant  to  keep 
the  premises  in  repair  for  a  certain  purpose  will  not  be  extended  by 
construction  to  bind  him  to  repair  for  an  entirely  different  purpose.®*^ 
A  covenant  to  restore  premises  to  their  original  condition  in  a  series 
of  leases  binds  lessee  to  restore  to  the  condition  in  which  the  premises 
were  at  the  beginning  of  the  first  lease.*'*^ 

Where  premises  which  were  out  of  repair  were  let  and  the  tenant 
covenanted  to  make  "necessary  repairs,"  the  expression  was  held  to 
mean  necessary  to  keep  the  property,  situated  as  it  was,  in  as  good 
condition  as  it  then  was, — the  condition  in  which  the  lessee  agreed  to 
return  it;  and,  in  case  the  lessee  is  insolvent,  he  must  make  such  re- 
pairs or  submit  to  a  cancellation  of  the  lease.*'^'' 

§  398.  A  lessee  who  has  been  compelled  to  rebuild  has  no  claim 
on  insurance  taken  out  by  the  lessor  for  his  own  benefit  or  claim  for 
contribution  from  the  lessor.  The  erection  of  the  new  building,  by 
the  lessee,  was  not  done  at  the  instance  or  by  the  procurement  of  the 
lessor.  It  was  the  voluntary  act  of  the  lessee,  done  in  performance 
of  his  own  covenants  in  the  lease.  He  was  not  entitled  to  the  con- 
tribution, by  the  lessor,  of  any  money  toward  the  rebuilding.  The 
insurance  money  belonged  to  the  assured,  the  owner  of  the  building. 
The  title  to  it  was  purchased  with  his  money,  not  that  of  the  lessee. 
He  as  well  as  the  lessee  had  an  insurable  interest  in  the  premises. 
Either  might  have  insured  his  interest.  Although  it  may  seem  a 
hardship  for  the  lessee  that  he  should  sustain  the  whole  cost  of  re- 
building, while  the  owner  of  the  premises  will  enjoy  the  ultimate 
benefit  thereof  should  the  building  remain,  a  court  of  equity  cannot 
for  such  reason  impose  upon  the  owner  payment  of  part  of  such 
cost.®^^     The  fire-policy  of  a  landlord,  made  in  his  own  behalf  at  his 

"^"Lister  v.  Lane,  L.  R.    (1893),  2  "'Hooker  v.  Banner,  76  Cal.  116, 

Q.  B.  212.  18  Pac.  136.                                                       j 

""  Gutteridge  v.  Munyard,  7  C.  &  ^'^  Waddell  v.  De  Jet,  76  Miss.  104, 

P.  129.  23  So.  437. 

«« Meyers  v.  Myrrell,  57  Ga.  576.  '"^  Ely  v.  Ely,  80  111.  532. 


443  FOR  REPAIRS.  [§§  399,  400 

cost,  does  not  attach  to  the  building  insured  but  is  personal  to  him. 
It  is  not  a  covenant  running  with  the  land,  for  these  are  always  re- 
ferable to  tenure,  and  requires  privity  of  estate  and  must  affect  it  in 
quantity,  or  quality,  value,  or  enjoyment ;  and  a  fire  policy  does  none 
of  these  things,  and  therefore  does  not  inure  to  the  benefit  of  a  grantee 
of  the  insured.  The  lessee  is  a  grantee,  a  lease  for  rent  being  legally 
a  sale  of  the  premises  for  the  term.*'^^ 

§  399.  City  ordinance  forbidding  wooden  building^. — WQiere  a 
lessee  of  a  frame  building  had  bound  himself  to  replace  it  in  case  of 
destruction  by  fire,  it  was  held  that  he  was  bound  to  build  a  brick  or 
stone  building  after  a  city  ordinance  had  been  passed  forbidding  the 
erection  of  wooden  buildings.  The  court  argue  that  the  parties  must 
have  known  that  the  city  could  pass  such  an  ordinance  at  the  time 
they  entered  into  the  contract.  If  they  intended  that  the  passage  of 
such  an  ordinance  should  exonerate  the  lessee  from  his  covenant  they 
should  have  so  stipulated.  The  ordinance  does  not  render  the  per- 
formance of  the  covenant  impossible.  It  simply  makes  it  more  bur- 
densome and  expensive,  and  that  has  never  been  an  excuse  for  non- 
performance.*'^^ The  opposite  result  was  reached  in  regard  to  a  simi- 
lar covenant  by  a  lessor  on  the  ground  that  the  lessor  had  undertaken 
to  do  something  which  by  a  change  in  the  law  had  become  illegal; 
and  his  covenant  had  thereby  been  discharged.  The  court  emphasized 
the  view  that  the  lessor  only  undertook  to  replace  the  destroyed  build- 
ing with  a  similar  structure  and  that  would  be  inconvenient  if  not 
impossible.  Had  the  exact  contingency  which  had  since  happened 
been  in  the  minds  of  the  parties  at  the  time,  it  is  scarcely  conceivable 
that  the  lessor  would  have  consented  to  put  up  a  brick  building  and 
rent  it  for  the  same  price.''^* 

§  400.  A  duty  to  maintain  machinery  in  a  leased  mill  will  be  cre- 
ated by  a  covenant  of  the  kind  under  discussion.  So  on  the  demise 
of  a  cotton  press,  a  covenant  to  keep  the  premises  in  good  repair  and 
to  leave  them  in  good  repair  made  it  the  duty  of  the  lessee  to  put  the 
press  in  good  order  and  if  he  failed  to  do  so,  the  owner  of  tlie  press 
had  a  right  to  charge  the  lessee  with  the  expenses  of  such  repairs.'^^^ 
Under  a  covenant  in  a  lease,  to  keep  a  mill  in  necessary  repairs,  the 
covenantor  is  not  bound  to  add  improvemnets  or  make  additions,  but 

"'=  Lovett  V.   United    States,    9    Ct.  ''■"  Cordes  v.  Miller,  39  Mich.  581. 

CI.  479;  Carpenter  v.  Providence  &c.  "^'^  Simkins    v.    Cordele    Compress 

Ins.  Co.,  16  Pet.  (U.  S.)  495.  Co.,  113  Ga.  1050,  39  S.  E.  407. 

""  David  v.  Ryan,  47  Iowa  642. 


§§  401,  402]  COVENANTS  IN  LEASES.  444 

he  is  required  to  renew  existing  machinery  when  too  old  and  worn 
to  answer  its  purpose  in  the  mill.  If,  for  example,  a  strap  gave  way 
and  the  material  was  too  rotten  and  decayed  to  be  mended,  a  new  one 
to  take  its  place  became  necessary  as  a  repair.^°® 

§  401.  Painting,  papering  and  decorating. — In  the  case  of  Proud- 
foot  V.  Hartf^"^  arising  before  the  court  of  Queen's  Bench,  the  court 
below  were  of  opinion  that  painting  for  decorative  purposes  could 
not  be  required  under  a  covenant  to  repair,  and  that  repapering  could 
only  be  required  in  case  it  were  necessary  to  preserve  the  walls  and  to 
keep  the  plastering  from  falling  down.  On  appeal  the  court  above 
agreed  that  the  tenant  was  not  bound  to  repaper  simply  because  the 
old  paper  was  worn  out,  but  under  certain  circumstances  they  thought 
the  tenant  would  be  under  obligation  to  repaper.  The  mere  fact  of 
its  being  in  worse  condition  does  not  impose  on  the  tenant  any  obliga- 
tion to  repaper  under  the  covenant,  if  it  is  in  such  a  condition  that  a 
reasonably-minded  tenant  of  the  class  who  would  occupy  such  a  house 
would  not  think  the  house  unfit  for  his  occupation.  The  same  reason- 
ing makes  it  necessary  that  he  paint  it  in  such  a  way  as  would  satisfy 
a  reasonable  tenant  taking  such  a  house.  Although  decorations  are 
out  of  repair,  the  tenant  is  not  bound  by  his  covenant  to  repair  or 
replace  them  if  the  house  would  be  acceptable  to  a  reasonable  tenant 
of  the  class  accustomed  to  occupy  it  Avithout  any  such  decorations  at 
all.  These  views  are  in  conformity  with  an  early  case  to  the  effect  that 
under  a  covenant  to  repair,  uphold,  and  maintain  a  house  a  tenant 
was  bound  to  keep  up  the  inside  painting.*'^®  But  even  if  there 
is  an  express  covenant  to  repair  and  paint,  this  does  not  necessarily 
involve  the  entire  repainting  of  the  premises."^^  It  has  been  held  also 
that  a  covenant  by  a  landlord  to  repair  did  not  contemplate  that  he 
should  restore  wall  decorations  placed  there  by  a  previous  tenant. *"^° 

§  402.  The  point  of  time  at  which  the  then  condition  of  the  prem- 
ises furnishes  the  standaid  of  repair  which  a  lessee  is  bound  to  main- 
tain is  the  time  when  the  leasehold  estate  commences.  After  the  date 
of  a  lease  and  before  the  beginning  of  the  term,  certain  repairs  were 
made  on  the  leased  premises  by  the  lessee  in  consideration  of  his  being 
allowed  to  occupy  them  during  that  period.     They  were  in  effect  rc- 

"^^  Cooke  V.  England,  27  Md.  14.  L.  R.   717,  affirmed   3   Times  L.   R. 

'^"Proudfoot  V.  Hart,  25  Q.  B.  D.  392. 

42,  47.  ^'"'Goss  &c.  Co.   v.  Oviatt,  60   Mo. 

"='  Monk  V.  Noyes,  1  C.  &  P.  265.  App.  565. 
•^^Moxon  V.  Townshend,   2  Times 


445  FOR  REPAIRS.  [§    403 

paired  by  the  lessees  in  behalf  of  the  lessor,  and  stood  as  if  they  had 
been  put  in  repair  by  the  lessor  before  the  execution  of  the  lease.  So 
that  a  covenant  by  the  lessee  to  deliver  up  the  premises  "in  as  good 
order  and  repair  as  the  same  now  are"  bound  him  to  keep  up  these 
repairs.^®^  The  obvious  meaning  of  a  future  lease  is  that  the  lessees 
are  to  receive  the  premises  at  the  beginning  of  the  term  in  the  con- 
dition they  were  in  when  the  lease  was  executed  and  were  to  keep  it 
in  as  good  repair  as  it  was  on  the  latter  day  till  the  end  of  the  term. 
When,  therefore,  a  shed  on  the  premises  fell  before  the  term  of  lease 
began  and  before  the  lessees  took  possession,  it  was  incumbent  upon 
the  lessor  to  rebuild  it.  This  was  essential  in  order  to  put  the  lessees 
in  a  position  to  perform  their  undertaking  and  carry  out  the  evident 
intention  of  the  parties  to  the  contract.®®^ 

§  403.  When  right  of  action  accrues. — For  injury  to  personal 
property  leased,  any  action  for  damages  would  be  premature  until  the 
expiration  of  the  lease  term.  If  the  lessee  under  his  contract  agreed 
to  return  the  personal  property  "in  as  good  condition  as  the  same  now 
is,"  no  cause  of  action  for  a  breach  of  that  covenant  could  arise  until 
the  time  came  for  a  return  of  the  property.  The  mere  fact  that  it  was 
injured  and  damaged  at  some  time  during  the  life  of  the  lease  would 
not  show  that  it  could  not  be  returned  subsequently  in  substantially 
the  same  condition.  It  would  not  show  but  that  repairs  would  place 
it  in  the  same  condition  as  when  leased.^^^  Where  a  lease  contained 
a  covenant  on  the  part  of  the  lessee  to  deliver  up  the  premises  at  the 
end  of  the  term  in  as  good  condition  as  he  received  them,  this  was  held 
not  to  be  a  continuing  covenant  to  repair  and  keep  in  repair  at  all 
times  but  that  the  tenant  has  the  whole  time  until  the  end  to  put  the 
premises  in  repair.  So  when  the  premises  were  surrendered  before 
the  end  of  the  term  the  lessee  was  under  no  obligation  to  repair  by 
reason  of  his  covenant.  The  repairs  were  to  be  made  on  the  expira- 
tion of  said  lease,^^^ 

However,  there  is  authority  for  allowing  the  lessor  to  bring  an  ac- 
tion on  the  case  against  the  lessee  during  the  term ;  such  action  would 
not  be  prevented  by  the  covenant  of  the  lessee  to  leave  the  premises 
in  good  repair.  At  common  law  a  tenant  was  liable  for  waste  from 
accidental  causes  only  where  there  was  an  agreement  to  repair.    In  all 

""^Holbrook  v.  Chamberlin,  116  ^^'Fratt  v.  Hunt,  108  Cal.  288,  41 
Mass.  155.  Pac.  12. 

'"Lightfoot  v.  West,  98  Ga.  546,  •"'*  Reed  v.  Snowliill,  51  N.  J.  L. 
25  S.  E.  587.  162,  16  Atl.  679,  reversing  49  N.  J. 

L.  292. 


404] 


COVENANTS    IN    LEASES. 


446 


such  cases  the  only  remedy  is  by  suit  on  the  covenant;  but  where 
the  tenant  is  guilty  of  voluntary  waste,  and  by  his  voluntary  act  injury 
is  done  to  the  reversioner,  then  the  lessor  may  bring  his  action  during 
the  lease,  even  though  the  tenant  may  have  it  in  his  power  to  restore 
the  premises  to  their  original  state  before  its  expiration.^"^  In  a 
leading  English  case  on  this  subject.  Lord  Ellenborough,  with  whom 
the  other  judges  concurred,  said  that  "the  act  of  the  tenant  was  an 
injury  to  the  title  of  the  reversioners,  and  a  present  damage  to 
them/'««« 

§  404.  The  obligation  of  a  landlord  in  any  case  to  repair  and  re- 
build leased  premises  rests  solely  on  express  contract,  and  without  an 
express  contract  to  that  effect  the  landlord  is  neither  bound  to  repair 
leased  premises  himself  nor  to  pay  for  repairs  made  by  the  tenant.  It 
is  not  in  the  power  of  a  tenant  to  make  repairs  at  the  expense  of  his 
landlord,  unless  there  be  a  special  agreement  between  them  authoriz- 
ing him  to  do  this.  The  tenant  takes  the  premises  for  better  and  for 
worse  and  cannot  involve  his  landlord  in  expense  for  repairs,  without 
his  consent.^®'^     A  covenant  by  a  lessee  to  repair  a  part  of  the  prem- 


**=  Moses  V.  Old  Dominion  &c.  Co., 
75  Va.  95.  On  page  102  the  court 
argues  as  follows:  "If  the  landlord 
is  compelled  to  wait  the  expiration 
of  the  term  before  he  can  sue,  he 
must  of  course  run  all  the  risks  of 
the  tenant's  continued  solvency, 
and  of  the  loss  of  evidence  by  the 
death  or  absence  of  witnesses.  And 
all  this  loss  and  inconvenience  are 
to  be  borne,  because  perchance  the 
tenant  may  conclude  to  repair  the 
property  during  the  term,  in  the 
face  of  his  declaration  that  he  will 
not  repair,  and  of  his-  express  denial 
of  all  liability  for  injury  to  the 
estate.  If  the  tenant  refuses  to  re- 
pair the  premises,  he  can  not  com- 
plain that  the  landlord  does  so. 
He  is  thereby  restored  to  his  former 
occupation,  whereas  he  might  have 
been  compelled  to  pay  the  rent  with- 
out the  use  and  occupation.  If  by 
his  negligence,  or  misfeasance,  the 
property  has  been  materially  in- 
jured   he    ought    at   once    to    make 


good  the  loss  by  repairing  it,  or  by 
indemnifying  the  landlord  for  the 
expense  he  has  necessarily  incurred 
in  making  such  repairs." 

666  Provost  V.  Hallett,  14  East  489. 

«*'' Turner  v.  Townsend,  42  Neb. 
376,  60  N.  W.  587;  Witty  v.  Mat- 
thews, 52  N.  Y.  512;  Libbey  v.  Tol- 
ford,  48  Me.  316;  Vai  v.  Weld,  17  Mo. 
232;  Brewster  v.  De  Fremery,  33 
Cal.  341;  Estep  v.  Estep,  23  Ind. 
114;  Kahn  v.  Love,  3  Ore.  206; 
Moore  v.  Weber,  71  Pa.  St.  429; 
Arden  v.  Pullen,  10  M.  &  W.  321; 
Button  V.  Gerrish,  9  Gush.  (Mass.) 
89;  Rogan  v.  Dockery,  23  Mo.  App. 
313;  Hughes  v.  Vanstone,  24  Mo. 
App.  637;  Kaufman  v.  Clark,  7  D. 
G.  1;  Medary  v.  Gathers,  161  Pa.  St. 
87,  28  Atl.  1012;  Hess  v.  Weingart- 
ner,  12  Montg.  Co.  L.  R.  (Pa.)  105, 
5  Pa.  Dist.  R.  451;  Long  v.  Fitzim- 
mons,  1  W.  &  S.  (Pa.)  530;  Wein- 
steine  .v.  Harrison,  66  Tex.  546,  1  S. 
W.  626. 


4-i7  FOR   REPAIRS.  [§'  404 

ises  was  held  to  raise  a  fair  implication  that  the  balance  was  to  be 
repaired  by  the  lessor  and  in  that  case  the  landlord  cannot  recover 
rent  after  the  building  has  become  untenantable.^^^  The  lessee  must 
suffer  necessary  repairs  to  be  made,  however,  and  is  not  justified  in 
abandoning  the  premises  because  of  the  lack  of  repair,'"'^ 

As  long  ago  as  the  time  of  Lord  Mansfield  it  was  laid  down  as  an 
established  principle  of  law,  that  the  consequence  of  the  house  being 
burned  down  was,  that  the  landlord  was  not  obliged  to  rebuild,  but 
the  tenant  was  obliged  to  pay  the  rent  during  the  whole  of  the  term.®''*' 
If  there  has  been  no  agreement  or  obligation  on  the  part  of  the  lessor 
to  repair  the  premises,  the  fact  that  they  were  out  of  repair  would  not 
be  a  defense  to  an  action  to  recover  the  amount  of  rent  agreed  to  be 
paid.^^^  Under  a  power  to  a  tenant  for  life  to  lease  for  years  reserv- 
ing the  usual  covenants,  a  lease  made  by  him  containing  a  proviso, 
that,  in  case  the  premises  were  blown  down  or  burned,  the  lessor 
should  rebuild,  otherwise  the  rent  should  cease,  is  void.  Such  a  cove- 
nant is  not  a  usual  covenant  in  a  lease.**^^  From  a  provision  in  a 
written  lease  that  the  lessee  shall  keep  the  premises  in  repair  except 
as  to  unavoidable  accidents  and  natural  wear  and  tear,  the  law  will 
not  imply  a  covenant  on  the  part  of  the  lessor  to  repair  damage  caused 
by  unavoidable  accidents.®''^  The  only  possible  effect  of  the  exception 
of  natural  wear  and  tear  would  be  to  qualify  or  restrict  the  liability 
of  the  lessee  to  the  lessor  to  restore  the  premises  in  good  condition.^''* 
But  where  a  part  only  of  a  building  was  leased  and  the  lessee  cove- 
nanted to  repair  the  part  leased  it  was  held  that  by  implication  the 
lessor  undertook  to  repair  the  rest  of  the  building.®^ ^  A  mere  naked 
promise  of  a  landlord  to  repair  the  demised  premises  based  on  no  suffi- 
cient consideration  cannot  be  enforced  in  favor  of  the  tenant,^''*'  but 
such  an  agreement  might  be  supported  by  the  lessee's  obligation  to 

"'^Bissell  V.  Lloyd,  100  111.  214.  33  W.  Va.  32;  Weigall  v.  Waters,  6 

669  Murrell     v.     Jackson,     33     La.  Term  R.  488. 

Ann.  1341.  "'*  Hartford  &c.  Co.  v.  Mayor  &c., 

""  Belfour  v.  Weston,  1  Term  R.  78  N.  Y.  1. 

310;    Fowler  v.   Bott,    6   Mass.    63;  «"  Mumf ord  v.  Brown,  6  Cow.  (N. 

Smith  V.  Kerr,  108  N.  Y.  31,  15  N.  Y.)  475. 

E.  70,  §  675.  °'«Libbey  v.   Tolford,   48  Me.   316, 

"'Moffat  v.   Smith,   4   N.  Y.   126;  77  Am.  Dec.  229;  Hall  v.  Beston,  16 

Burnes  v.  Fuchs,  28  Mo.  App.  279;  Misc.   R.    (N.   Y.)    528,   38   N.   Y.   S. 

Hill  V.  Woodman,  14  Me.  38.  979;   Purcell  v.  English,  86  Ind.  34, 

"=Doe   V.    Sandham,    1    Term    R,  44  Am.  R.  255;  Proctor  v.  Keith,  12 

705.  B.  Mon.  (Ky.)   252;  Eblin  v.  Miller, 

"'Clifton  V.  Montague,  40  W.  Va.  78  Ky.  371;  Gottsberger  v.  Radway, 

207,  21  S.  E.  858;   Kline  v.  McLain.  2  Hilt.  (N.  Y.)  342. 


§  405]  COVENANTS  IN  LEASES.  448 

comply  with  the  recitals  in  a  deed-poll  which  he  had  accepted.*'" 
rurthermore  voluntary  repairs  by  a  landlord  raise  no  presumption  of 
a  contract  to  repair.  ®^^  The  tendency  of  modern  decisions  is  not  to 
imply  covenants  which  might  and  ought  to  have  been  expressed  if  in- 
tended. A  covenant  is  never  implied  that  a  lessor  will  make  any  re- 
pairs.^^*  In  one  case  the  supposed  implied  covenant  on  the  part  of  the 
lessor  was  not  for  repairs  to  the  property  demised  but  related  to  other 
property  belonging  to  the  lessor  which,  it  was  claimed,  he  bound  him- 
self by  implication  to  keep  in  good  order  and  repair.  But  there  was 
no  covenant,  either  express  or  implied,  that  the  lessor  would  build 
or  keep  the  premises  in  good  order.  Such  was  doubtless  his  intention 
as  expressed  in  the  recital,  but  that  was  intended  only  for  his  own 
benefit,  and,  whether  he  would  continue  to  do  so  or  not,  was  left  to 
depend  entirely  on  his  own  will.*'^^  •  A  tenant  refused  to  pay  rent  un- 
less repairs  were  made  and  was  notified  to  quit.  It  was  held  that  a 
subsequent  promise  of  the  landlord  to  make  repairs,  if  the  tenant 
would  stay  at  the  same  rental,  was  based  upon  a  sufficient  consideration, 
and  could  be  enforced  by  action.®^^ 

Upon  familiar  principles  of  law,  an  authority  given  by  a  landlord 
to  a  tenant  to  make  repairs  at  his  expense  would  terminate  upon  the 
death  of  the  landlord.®*^ 

§  405.  A  tenant  has  no  equity  to  compel  his  landlord  to  expend 
money  received  from  an  insurance  company,  on  the  demised  premises 
being  burned  down,  in  rebuilding  the  premises;  nor  can  the  tenant 
restrain  the  landlord  from  suing  for  the  rent  until  the  premises  are 
rebuilt.^ *^  But  if  the  lessor  has  covenanted  to  rebuild  structures  de- 
stroyed by  fire,  qompliance  with  that  covenant  is  a  condition  precedent 
to  his  right  to  collect  rent  and  the  lessor's  breach  releases  the  lessee 
from  further  liability.®^*  In  the  absence  of  a  covenant  by  the  lessor 
to  rebuild,  however,  a  lessee's  covenant  to  pay  rent  is  not  affected  by 
an  injury  to  the  premises,  nor  limited  by  the  exception  of  unavoid- 
able casualty  in  his  subsequent  covenant  to  repair,  and  the  liability 
for  rent  would  also  be  independent  of  the  lessor's  covenant  to  make 

«"Vass  V.  "Wales,  129  Mass.  38.  ^^^  Moyer  v.  Mitchell,  53  Md.  171. 

"*  Moore  v.  Weber,  71  Pa.  St.  429,         ""  Conkling    v.    Tuttle,    52    Mich. 

10  Am.  R.  708.  630.  18  N.  W.  391. 

*"  Witty    V.    Matthews,    52    N.    Y.         «"=  Wilson   v.    Edmonds,    24   N.    H. 

512;    Sheets  v.   Selden,  7  Wall.    (U.  517,  547. 

S.)  416;  Pomfret  v.  Ricroft,  1  Saun-         "^  Leeds  v.  Cheetham,  1  Sim.  146. 
ders  321,  322,  n.  1;   Post  v.  Vetter,         *'*  Lincoln    Trust    Co.    v.    Nathan, 

2  E.  D.  Smith  (N.  Y.)  248.  175  Mo.  32,  74  S.  W.  1007. 


449  FOR  KEPAiRS.  [§§'  406,  407 

outside  repairs.^^^  It  is  well  settled  that  the  exception  of  a  lessee's 
liability  on  his  covenant  to  repair  in  case  of  damage  by  fire  does  not 
raise  an  equity  in  his  favor  for  an  injunction  against  an  action  under 
the  contract  for  payment  of  rent  after  the  destruction  of  the  house  by 
gj.g  686  Qjj  fi^Q  destruction  of  a  leased  building,  the  tenant  has  the 
right  to  build  on  the  premises  and  occupy  such  building  for  the  re- 
mainder of  the  term  if  he  chooses  to  do  so  under  the  conditions  of  the 
original  lease.  In  the  absence  of  a  covenant  to  rebuild,  the  landlord 
has  no  right  to  enter  upon  the  demised  premises  and  take  possession 
to  the  exclusion  of  the  tenant  for  the  purpose  of  erecting  a  new  struc- 
ture, but  if  the  tenant  makes  no  objection  to  such  a  proceeding,  it 
would  be  deemed  a  license  from  him  to  the  landlord  to  enter  for  the 
purpose  of  rebuilding.®^ ^ 

§  406.  In  California  the  lessor  of  a  building  intended  for  the  oc- 
cupation of  human  beings  must,  in  the  absence  of  an  agreement  to  the 
contrary,  put  it  into  a  condition  fit  for  such  occupation  and  repair 
all  subsequent  dilapidations  thereof,  which  render  it  untenantable,*'*^ 
•except  that  the  hirer  of  a  thing  must  repair  all  deteriorations  or  in- 
juries thereto  occasioned  by  his  ordinary  negligence.''*^  If  within  a 
reasonable  time  after  notice  to  the  lessor,  of  dilapidations  which  he 
ought  to  repair,  he  neglects  to  do  so,  the  lessee  may  repair  the  same 
himself,  and  deduct  the  expenses  from  the  rent,  or  he  may  vacate  the 
premises  and  be  discharged  from  further  payment  of  rent.®®"  These 
sections  of  the  code  do  not  by  operation  of  law  insert  in  a  lease  of  a 
residence  a  covenant  on  the  part  of  the  landlord  to  repair  but  merely 
make  it  the  duty  of  the  landlord  to  repair  upon  notice,  and  upon  his 
failure  to  do  so,  allow  the  tenant  the  option  to  repair  to  the  extent  of 
one  month's  rent,  or  to  vacate  the  premises  discharged  from  further 
liability  for  rent.*'®^ 

§  407.  By  statute  in  Dakota, "^^  ^hich  has  been  reenacted  in  both 
North*'®^  and  South  Dakota,*'*'*  the  lessor  of  a  building  intended  for 

"'^Belfour   v.  Weston,  1  Term  R.  '^'«  Civ.  Code,  §  1941. 

310;   Hare  v.  Groves,  3  Anstr.  687;  "^^  Civ.  Code,  §  1929. 

Kramer   v.    Cook,    7    Gray    (Mass.)  """  Civ.  Code,  §  1942. 

550;    Leavitt  v.    Fletcher,    10   Allen  "="  Green  v.  Redding,  92  Cal.  548, 

(Mass.)  119,  §  675.  28  Pac.  599. 

"'« Holtzapffel    v.    Baker,    18    Ves.  "»=  Civ.  Code,  §§  1114,  1115. 

115.  ""^Civ.  Code  1895,  §§  4080,  4081. 

""  Smith  V.  Kerr,  108  N.  Y.  31,  15  ">'  Civ.  Code  1901,  §§  4926,  4927. 
N.  E.  70. 

Jones  L.  &  T.— 29 


§   408]  '       COVENANTS  IN   LEASES.  450 

human  habitation  must  repair  all  subsequent  dilapidations  except 
those  caused  by  the  ordinary  negligence  of  the  lessee.  After  lessor's 
failure  to  repair  on  notice,  the  lessee  may  repair  and  deduct  the  cost 
from  the  rent  or  he  may  vacate  and  be  relieved  from  further  liability 
on  the  lease.  These  statutes  have  been  construed  to  apply  to  dwell- 
ing houses  only,  so  that  a  building  used  and  occupied  as  a  retail 
grocery  store  would  not  come  within  the  terms  of  the  act.^^^ 

§  408.  A  covenant  by  a  lessor  to  make  all  necessary  repairs  on  the 
outside  of  a  building  is  not  a  covenant  that  the  outside  shall  not  give 

way  but  one  that,  if  it  does,  he  will  repair  it.  So  he  cannot  be  held 
liable  for  damages  occasioned  by  the  fall  of  the  building.  The  neces- 
sary repairs  on  the  outside  are  those  which  will  make  the  building 
outwardly  complete.  When  those  are  made,  then,  and  not  before,  the 
lessee  will  be  bound  by  his  covenant  to  make  all  necessary  repairs  on 
the  inside.  The  fact  that  rebuilding  the  outside  will  so  far  replace  the 
whole  building  as  to  leave  very  little  to  be  done  on  the  inside  and  thu& 
make  the  performance  of  the  lessee's  covenant  very  easy^  does  not  in 
any  degree  excuse  the  lessor  from  first  performing  his  covenant.^'"' 
Where  a  lessee  agreed  to  make  all  improvements  he  should  deem  neces- 
sary in  a  house  at  his  own  expense,  but  all  outside  and  permanent  im- 
provements were  to  be  done  at  the  expense  of  the  lessor,  the  expense 
of  putting  in  a  heating  furnace  could  not  be  charged  up  to  the  lessor. 
The  furnace  not  being  outside  the  house  the  cost  of  it  could  not  be 
charged  to  the  lessor  and  parol  evidence  varying  or  explaining  the 
meaning  of  the  lease  was  properly  excluded.*'^^ 

In  case  a  lessor  lets  a  building  for  a  particular  purpose  and  cove- 
nants to  repair  it,  it  is  his  duty  to  put  it  in  such  a  state  of  repair  as 
the  business  requires.  This  duty  exists  whether  the  defects  existed 
at  the  time  of  the  lease,  or  arose  from  defects  in  construction  or  gen- 
eral dilapidation.^^^  So  by  force  of  an  agreement  to  "keep"  in  re- 
pair, if  to  keep  in  repair  it  is  necessary  that  the  premises  should  first 
be*  put  in  repair,  the  lessor  is  bound  to  perform  that  duty.*^^"  Such  a 
covenant  by  a  lessor  usually  contains  no  clause  as  to  the  then  condi- 
tion of  the  premises  and  no  exception  of  natural  wear  and  natural 

'''^Edmison  v.  Aslesen,  4  Dak.  145,  88   N.  W.  380;    Myers  v.  Burns,   35 

27  N.  W.  82.  N.  Y.  269;  Bass  v.  Rollins,  63  Minn. 

•'""Leavitt    v.    Fletcher,    10    Allen  226,  65  N.  W.  348;   Miller  v.  McCar- 

(Mass.)  119.  dell,  19  R.  I.  304,  33  Atl.  445. 

«"  Smith  V.  Hess,  83  Iowa  238,  48  ''^^  Myers  v.  Burns,  35  N.  Y.  269; 

N.  W.  1030.  Payne  v.  Haine,  16  M.  &  W.  541. 

«"'  Piper  V.  Fletcher,  115  Iowa  263, 


451  FOR   REPAIRS.  [§'   409 

decay.  Good  repair  and  good  condition,  at  all  times,  is  the  fair  in- 
tent of  the  agreement.  But  after  a  landlord  has  performed  a  cove- 
nant such  as  to  put  fences  in  repair,  the  lessee  must  make  any  ob- 
jections to  the  work  at  once;  if  he  accepts  possession  without  com- 
plaint, he  is  estopped  subsequently  to  claim  the  repairs  were  defective 
and  caused  damage.'^"" 

Ordinarily  a  lessor's  covenant  to  repair  and  to  have  premises  suit- 
able for  occupation  for  a  certain  purpose  would  apply  only  to  the  state 
of  physical  repair  of  the  premises.  But  an  agreement  that  premises 
should  be  in  good  condition  for  comfortable  occupation  as  a  court- 
room was  held  to  be  a  covenant  against  disturbance  by  noise  from  other 
tenants  in  the  building.''°^ 

§  409.  Requirement  of  notice  to  landlord. — The  established  rule 
of  law  in  regard  to  notice  which  the  courts  now  apply  is  that  "where 
a  party  stipulates  to  do  a  certain  thing  in  a  certain  specific  event 
which  may  become  known  to  him,  or  with  which  he  can  make  himself 
acquainted,  he  is  not  entitled  to  any  notice  unless  he  stipulates  for  it ; 
but  when  he  is  to  do  a  thing  which  lies  within  the  peculiar  knowledge 
of  the  opposite  party,  then  notice  ought  to  be  given  him."'^''-  Thus, 
where  the  thing  to  be  repaired  is  a  fence  and  the  lessor  has  not  stipu- 
lated for  notice  he  is  not  entitled  to  any.  Even  if  this  were  not  de- 
cisive, a  further  clause  reserving  to  the  lessor  the  right  to  enter  on  the 
premises  to  view  and  make  improvements  would  be.'^*'^  But  where  the 
tenant  has  secured  to  himself  the  right  to  make  the  necessary  repairs, 
and  to  deduct  the  expense  thereof  from  the  rent,  he  cannot  claim  any 
extra  compensation  by  way  of  damages,  especially  if  he  does  not  al- 
lege in  his  answer  that  he  gave  notice  to  the  lessor  that  the  j^remises 
wanted  repairs  after  the  commencement  of  the  term.""*  In  case  the 
lack  of  repair  is  on  the  inside  of  the  house  to  which  the  tenant  only 
had  access,  the  landlord  cannot  be  deemed  to  have  broken  his  engage- 
ment, or  to  be  in  default  unless  it  appear  that  he  neglected  to  do  the 
thing  promised,  after  notice  and  lapse  of  a  time  sufficient  to  allow 
him  to  repair.'^""  The  same  rule  was  applied  in  a  case  where  a  lessor 
covenanted  to  repair  the  outside  of  a  building,  the  main  timbers  and 

■00  Williamson   v.   Miller,   55   Iowa  ™^  Hayden    v.     Bradley,     6     Gray 

86,  7  N.  W.  416.  (Mass.)  425. 

™  Riley  v.  Pettis  County,  96  Mo.  ""^  Wolcott  v.  Sullivan,  6  Paige  (N. 

318,  9  S.  W.  906.  Y.)   117. 

'"Vyse  V.   Wakefield,   6   M.   &  W.  ™^  Ploen  v.  Staff,  9  Mo.  App.  309; 

442,  453,  per  Lord  Abinger.  Walker  v.  Gilbert,   2  Robt.    (N.  Y.) 

214,  221. 


410] 


COVENAXTS    IN   LEASES. 


453 


the  roof.  As  to  part  of  these  the  lessor  could  have  acquired  knowledge 
of  the  necessity  for  repairs  by  observation,  but  as  to  the  rest  he  could 
not ;  so  there  should  be  imported  into  the  covenant  the  condition  that 
the  lessor  shall  have  notice  of  the  lack  of  repair  before  he  can  be 
called  on  under  the  covenant  to  make  it  good.'^*'*' 

§  410.  Where  a  landlord  fails  to  keep  his  covenant  to  make  ex- 
terior repairs,  a  tenant  has  several  remedies.  (1)  He  may  abandon 
premises  if  they  become  untenantable  by  reason  of  want  of  repair. 

(2)  He  may  make  the  repairs  and  deduct  the  cost  from  the  rent. 

(3)  He  may  occupy  the  premises  without  repair  and  recoup  his  dam- 
ages in  an  action  for  the  rent.  (4)  He  may  sue  for  damages  for 
breach  of  the  covenant  to  repair.'^  "^^  Where  a  lessor  fails  to  perform  his 
covenants  to  repair,  the  lessee  may  hold  him  to  the  ordinary  responsi- 
bility of  a  person  failing  to  keep  his  contract.  A  lessee  need  not  make 
the  repairs  himself  but  can  recover  as  damages  the  difference  between 
the  value  of  the  premises  in  repair  and  out  of  repair.'^"*  It  is  well 
settled  that  a  tenant  is  not  bound  to  make  permanent  and  important 
repairs  which  the  landlord  has  contracted  to  make,  but  may  recover  his 
damages  for  the  landlord's  failure  to  make  them.'^''^  Or  if  a  lessor 
after  notice  refuses  to  perform  a  covenant  to  make  improvements  and 
repairs,  the  lessee  may  make  them  in  accordance  with  the  covenant 
and  charge  their  reasonable  value  against  the  rent."^''     It  has  also 


'°«Makin  v.  Watkinson,  L.  R.,  6 
Exch.  25.  In  this  case  Bramwell, 
B.,  says:  "I  think  that  we  are 
irresistibly  driven  to  say  that  the 
parties  can  not  have  intended  so 
preposterous  a  covenant  as  that  the 
defendant  should  keep  in  repair 
that  of  which  he  had  no  means  of 
ascertaining  the  condition.  The 
lessee  is  in  possession;  he  can  say 
to  the  lessor,  'You  shall  not  come 
on  the  premises  without  lawful 
cause;'  and  to  come  for  the  purpose 
of  looking  into  the  state  of  the 
premises  would  not  be  lawful  cause. 
If  the  lessor  comes  to  repair  when 
no  repair  is  needed  he  will  be  a  tres- 
passer; if  he  does  not  come,  he  will, 
according  to  the  plaintiff's  conten- 
tion, be  liable  to  an  action  on  the 
covenant,  if  repair  is  needed,  and 
will  be  liable  not  only  to  the  cost 


of  repair  but  to  consequential  dam- 
age for  injury  to  chattels-  caused  by 
reason  of  the  repairs  he  had  no  op- 
portunity of  effecting."  The  princi- 
pal case  was  approved  in  Manches- 
ter &c.  Co.  V.  Carr,  L.  R.,  5  C.  P.  Div. 
507. 

"'""  McCardell  v.  Williams,  19  R.  I. 
701,  36  Atl.  719. 

™^  Bostwick  V.  Losey,  67  Mich. 
554,  35  N.  W.  246;  Buck  v.  Rodgers, 
39  Ind.  222;  McCoy  v.  Oldham,  1 
Ind.  App.  372;  Ross  v.  Stockwell,  19 
Ind.  App.  86,  49  N.  E.  50;  Green  v. 
Bell,  3  Mo.  App.  291;  McFarlane  v. 
Pierson,  21  111.  App.  566;  Hexter  v. 
Knox,  63  N.  Y.  561.  But  see.  Cook 
V.  Soule,  56  N.  Y.  420. 

•""  Thomson-Houston  &c.  Co.  v.  Du- 
rant  &c.  Co.,  144  N.  Y.  34,  39  N.  E.  7. 

™Buck  V.  Rodgers,  39  Ind.  222; 
Wright  V.  Lattin,  38  111.  293;   Ross 


453  FOR    REPAIRS.  [§    410 

oeen  held  that  a  breach  of  a  covenant  to  repair  will  justify  the  ten- 
ant in  abandoning  the  premises  and  discharge  him  from  further  lia- 
bility for  rent.  Although  the  covenant  to  pay  rent  and  the  covenant 
to  repair  are  independent,  so  that  the  failure  of  a  landlord  to  repair 
does  not  work  a  forfeiture  of  the  rent/"  yet  if  the  landlord  fails  to 
repair  and  in  consequence  the  premises  become  untenantable,  the  ten- 
ant may  abandon  them  and  escape  liability  for  rent.'^^^  To  warrant 
an  abandonment,  however,  it  must  be  shown  that  the  premises  became 
untenantable  by  reason  of  the  landlord's  failure  to  comply  with  his 
agreement.' ^^ 

The  general  rule  for  the  measure  of  damages  for  failure  to  make 
repairs  is  the  difference  in  the  rental  value  of  the  premises  with  the 
repairs  and  the  rental  value  without  them."^*  In  an  action  by  lessee 
for  breach  of  covenant  to  repair  resulting  in  damages  to  furniture  and 
rendering  the  premises  unfit  for  use  as  a  boarding  house,  the  proper 
measure  of  damages  is  such  as  will  compensate  for  damage  to  fur- 
niture, and  the  difference  between  the  rental  value  of  the  building  as 
it  actually  was  and  what  it  would  have  been  worth  if  the  contemplated 
repairs  had  been  made.'^^^  Consequential  damages  may  sometimes  be 
recovered  but  such  recovery  is  confined  to  the  proximate  and  unavoid- 
able consequences  of  the  breach  of  the  covenant  to  repair.  The  lessee, 
it  is  true,  cannot  wait  till  the  demised  premises  fall  to  pieces  about 
his  head,  and  then  abandon  the  premises  and  sue  on  his  covenant  to 
repair.'^^    But  he  is  not  deprived  of  his  right  to  recover  any  actual 

v.  Stockwell,  19  Ind.  App.  86,  49  N.  15  Mont.  236,  38  Pac.  1072;  Piper  v. 

E.  50;  Hexter  v.  Knox,  63  N.  Y.  561;  Fletcher,  115  Iowa  263,  88  N.  W.  380. 

Cook  v.  Soule,  56  N.  Y.  420;  Beards-  '"Thomson-Houston     &c.     Co.     v. 

ley  v.  Morrison,  18  Utah  478,  56  Pac.  Durant  &c.  Co.,  144  N.  Y.  34,  39  N. 

303;   Cheuvront  v.  Bee,   44  W.  Va.  E.    7;    Taylor   v.    Lehman,    17    Ind. 

103,  28  S.  E.  751;  Orton  v.  Noonan,  App.  585,  46  N.  E.  84,  47  N.  E.  230. 

30  Wis.  611;   McFarlane  v.  Pierson,  In  Vivian  v.  Champion,  2  Ld.  Raym. 

21  111.  App.  566.  1125,    it   was    said   that   the    proper 

'"Young  v.  Burhans,  80  Wis.  438,  measure  of  damages  in  a  breach  of 

50  N.  W.  348.  such  covenants  was  what  it  would 

"-  Pierce   v.    Joldersma,    91   Mich,  cost  to  put  the  premises  in  repair. 

463,  51  N.  W.  1116;  Bissell  v.  Lloyd,  This    rule    appears    to    have    been 

100  111.  214;  Lewis  v.  Chisholm,  68  modified  in  some  modern  cases  on 

Ga.  40;  Piper  v.  Fletcher,  115  Iowa  covenants    for    repairs.     Fisher    v. 

263,    88    N.    W.    380;     Bostwick    v.  Goebel,  40  Mo.  475. 

Losey,  67  Mich.  554,  35  N.  W.  343.  ''^Kohne  v.  White,  12  Wash.  199, 

"'Prescott  v.  Otterstatter,  85  Pa.  40  Pac.  794. 

St.  534;  Moore  v.  Gardiner,  161  Pa.  ™  Thompson  v.  Shattuck,  2  Mete. 

St.  175,  28  Atl.  1018;  Blake  v.  Dick,  (Mass.)    615;    Fisher  v.    Goebel,   40 

Mo.  475. 


§  411]  COVENANTS  IN  LEASES.  454 

damage  he  may  have  sustained  by  the  dilapidation  of  the  leased 
building  merely  because  he  did  not  himself  repair  as  soon  as  the  de- 
cay or  dilapidation  became  dangerous.  The  damages  must  not  be  re- 
mote or  speculative. '^^^  Hence  it  has  been  held  that  indirect  and  conse- 
quential damages  flowing  from  some  failure  to  repair,  such  as  the 
destruction  of  crops  by  the  trespasses  of  cattle,  cannot  be  recovered 
from  the  lessor.'^^^  The  correct  rule  in  most  cases  would  be  that  if 
a  lessee  took  possession  with  a  fence  down,  it  was  his  right  and  duty 
to  rebuild  the  fence  and  that  the  full  extent  of  his  damages  could  not 
exceed  the  necessary  cost  of  rebuilding.  Yet  this  would  not  apply 
where  the  lessor  refused  to  rebuild  a  fence  or  to  allow  the  lessee  to  re- 
build it.  A  man  cannot  forbid  the  doing  of  a  thing  and  then  insist 
that  his  rights  are  to  be  predicated  upon  the  result  of  a  disregard  of 
his  instruction.'^ ^^  So  a  tenant  cannot  recover  damages  for  loss  of 
trade  resulting  from  a  breach  of  lessor's  covenant  to  repair.'^  ^^ 

In  assessing  damages,  certainty,  as  far  as  the  nature  of  the  case 
will  admit  of,  is  to  be  aimed  at  and  ascertained;  mere  speculative 
injuries,  depending  on  uncertain  future  contingencies,  afford  no 
ground  for  damages,'^^  But  in  an  action  during  the  term  by  a  ten- 
ant against  his  landlord  for  breach  of  a  covenant  to  repair,  the  ten- 
ant may  recover  damages  for  the  whole  leasehold  estate.'^^^  So  where 
an  action  brought  during  the  term  was  tried  after  the  lease  expired,  it 
was  held  that  the  Jury  could  consider  all  the  consequences  of  the  re- 
fusal to  repair,  those  subsequent  as  well  as  those  prior  to  the  institu- 
tion of  the  suit,  thus  settling  all  questions  of  damages  arising  from  the 
breach  of  the  covenant  assigned  in  the  declaration.'^^^ 


IX.     To  Pay  Taxes. 

§  411.  A  covenant  to  pay  taxes,  like  one  to  pay  rent,  is  an  under- 
taking to  do  something  in  respect  to  the  land  itself  and  therefore 
runs  with  the  land  and  binds  an  assignee  of  the  leasehold  estate."* 

'"Green  v.  Bell,  3  Mo.  App.  291;  '-Cohen    v.    Habenicht,    14    Rich. 

Loker  v.  Damon,  17  Pick.    (Mass.)  Eq.  (S.  Car.)  31. 

284,  288.  '^  Cooke  v.  England,  27  Md.  14. 

"^Varner  V.  Rice,  39  Ark.  344.  "^  Ellis  v.  Bradbury,  75  Cal.   234, 

"'Park  V.  Ensign,  10   Kan.  App.  17  Pac.  3;  Mason  v.  Smith,  131  Mass. 

173,  63  Pac.  280.  510;    Wills   v.    Summers,    45    Minn. 

"» MiddlekaufE    v.    Smith,    1    Md.  90.  47  N.  W.  463;   Post  v.  Kearney, 

329.  2  N.  Y.  394,  51  Am.  Dec.  303;  West 

'^  Cooke  V.  England,  27  Md.  14.  Virginia  &c.  R.  Co.  v.  Mclntire,  44 


455  TO    PAY    TAXES.  [§    411 

Purthermore  such  a  covenant  is  divisible  in  case  of  an  assignment  of 
a  part  of  the  lease.  And  the  assignee  of  a  portion  would  be  liable  to 
pay  taxes  in  proportion  to  the  extent  of  the  premises  assigned  to 
him."^  That  a  lessee  can  recover  from  his  assignee,  and  also  from  a 
second  assignee,  the  taxes  accruing  during  their  terms  respectively, 
and  which  the  lessee  has  been  obliged  through  their  default  to  pay  to 
the  lessor  is  well  settled.'^^^  But  after  a  second  assignment,  the  origi- 
nal lessee  cannot  recover  from  the  first  assignee  those  taxes  which  he 
has  been  obliged  to  pay  the  lessor.^"  In  order  that  the  covenant 
shall  run  with  the  land  it  is  only  necessary  that  the  payments  which 
it  covers  shall  be  made  in  respect  to  the  land  and  it  is  not  essential 
that  it  shall  be  to  pay  yearly  taxes.  So  a  covenant  by  the  lessee,  in  a 
lease  under  seal,  to  pay  all  costs,  charges  and  expenses,  except  the 
yearly  taxes,  is  a  covenant  running  with  the  land,  and  binding  on  an 
assignee. '^^* 

On  an  assignment  of  the  reversion  by  warranty  deed,  the  assignee 
can  enforce  the  lessee's  covenant  to  pay  taxes.  Although  the  convey- 
ance expressly  excepts  the  grantor  from  liability  for  taxes,  such  ex- 
ception will  not  prevent  a  transfer  of  the  right  to  the  grantee  to  com- 
pel the  lessee  to  pay  the  taxes  according  to  his  covenant.  The  excep- 
tion is  no  more  than  a  refusal  by  the  grantor  to  covenant  that  the 
lessee  would  perform  his  covenant. '^2®  But  a  stranger  to  the  lease 
cannot  take  advantage  of  a  covenant  by  the  lessee  to  pay  taxes.  Thus 
it  was  held  that  an  assessment  for  the  construction  of  a  sewer  could 
not  be  personally  enforced  against  the  lessee  by  a  municipality,  though 
the  lessee  covenanted  in  his  lease  to  pay  all  assessments  upon  the 
property  demised.'^^'* 

In  general  the  obligation  of  the  lessee  to  pay  taxes  does  not  make 
them  a  part  of  the  rent  reserved.  Eent  has  a  fixed  legal  meaning, 
and  to  consider  all  payments  which,  by  the  terms  of  a  lease,  a  tenant 
is  bound  to  make,  as  coming  within  its  definition,  would  lead  to  a 
confusion  of  ideas  without  necessity  or  advantage.  It  may  be  said 
that  the  payment  of  taxes  is  part  of  the  return  made  by  a  tenant  to 

W.  Va.  210,  28  S.  E.  696;  Huddell,  in  &  C.  589;  Moule  v.  Garrett,  L.  R.,  5 

re,  16  Fed.  373;  Hendrix  v.  Dickson,  Excli.  132. 

69   Mo.   App.   197;    Washington   Gas  '="  Mason  v.  Smith,  131  Mass.  510. 

Co.  V.  Johnson,  123  Pa.  St.  576,  16  "' Torrey     v.      Wallis,      3      Gush. 

Atl.  799,  10  Am.  St.  563,  §  328.  (Mass.)  442. 

'^  Ellis  V.  Bradbury,  75   Cal.   234,  '=«  Hendrix  v.  Dickson,  69  Mo.  App. 

17  Pac.  3.  197. 

'=*  Patten     v.      Deshon,      1      Gray  ""  Davis  v.  Cincinnati,  36  Ohio  St. 

(Mass.)  325;  Burnett  v.  Lynch,  5  B.  24. 


§'  412]  COVENANTS  IN  LEASES.  45& 

his  landlord  for  the  use  of  the  property  and,  therefore,  properly  comes, 
under  the  definition  of  rent.  But  in  one  sense  tlie  performance  of 
every  covenant  on  the  part  of  the  lessee  is  a  return  made  by  the  ten- 
ant for  the  use  of  the  land.  Yet  it  would  hardly  be  contended  that 
money  sti^^ulated  to  be  expended  in  repairs  or  for  insurance,  or  in 
the  way  of  improvements  was  any  portion  of  the  rent.  Taxes,  being 
payable  annually,  approach,  it  is  true,  to  the  idea  and  character  of 
rent  which  is  a  certain  yearly  return  reserved  to  the  landlord  in 
money,  or  kind,  or  service  for  the  enjoyment  of  the  freehold ;  but  they 
are  distinguishable  from  rent  in  this,  that  they  are  uncertain  both  as 
to  amount  and  time  of  payment,  and  are  payable,  not  to  the  landlord, 
but  to  the  government,  and  are  imposed  for  the  benefit  of  the  public, 
and  the  landlord  may,  by  the  terms  of  his  agreement  with  the  tenant, 
be  relieved  from  their  payment;  taxes  are  not,  on  that  account,  any 
more  rent  than  the  expenditure  of  money  for  insurance,  under  a  cove- 
nant to  that  effect  on  the  part  of  the  lessee.'^^^  The  expressions  some- 
times used  by  a  court  in  determining  what  taxes  are  included  in  the 
lessee's  covenant,  that  taxes  are  payable  as  part  of  the  rent,  mean  only 
that  they  are  paid  as  part  of  the  consideration  for  the  use  of  the  land, 
and  not  that  they  are  technically  rent.'^^-  However  it  has  been  held 
that  a  lessee's  general  undertaking  to  pay  taxes  made  them  payable  as 
part  of  the  rent  so  that  the  lessor  was  entitled  to  a  lien  to  that  extent, 
giving  him  priority  over  other  creditors  of  the  lessee.''^^ 

§  412.  The  general  rule  in  regard  to  leases  for  years  is  that  where 
the  lease  is  silent  on  the  subject,  the  landlord  is  bound  to  pay  all 
state  and  municipal  taxes  and  assessments  on  the  property  during  the 
term.^^*    However  in  the  case  of  a  lease  for  ninety-nine  years  with  a 

^^  Garner  v.  Hannah,  6  Duer   (N.  Memphis,    8    Heisk.     (Tenn.)     845; 

Y.)    262,  266,  in  the  words  of  Slos-  Connell   v.    Female  &c.    Asylum,    18 

son,  J.  La.  Ann.  513;   Moffat  v.  Henderson, 

"^Elliot    V.    Gantt,    64    Mo.    App.  50  N.  Y.  Super.  Ct.  211;   Sheldon  v. 

248;  McManus  v.  Fair  Shoe  &c.  Co.,  Hamilton,  22  R.  I.  230,  47  Atl.  316; 

60  Mo.  App.  216.  Philadelphia  &c.    R.    Co.    v.   Appeal 

™Gedge   v.    Shoenberger,    83   Ky.  Tax   Court,    50    Md.   397;    Leach   v. 

91.  Goode,  19  Mo.  501;   People  v.  Bark- 

"*  Bettison  v.  Budd,  17  Ark.   546,  er,  153  N.  Y.  98,  47  N.  E.  31,  affirm- 

65  Am.  Dec.  442;    Sargent  v.  Pray,  ing,  15  App.  Div.  628;  Anderson  v. 

117  Mass.  267;  Weichselbaum  v.  Cur-  Harwood,  47  Mo.  App.  660;  Graham 

lett,   20   Kan.    709,    27   Am.   R.    204;  v.  Wade,  16  East  29;   Townshend  v. 

Western  &c.  R.  Co.  v.  State,  54  Ga.  Stangroom,   6  Ves.   333;    Greaves  v. 

428;    Kitchen  v.  Smith,  101  Pa.   St.  Ashlin,  3  Campb.  426;  Dove  v.  Dove, 

452;     Turley    &c.    Inst.    v.    City    of  18  U.  C.  C.  P.  424. 


I 


457  TO   PAY   TAXES.  [§   413 

covenant  for  perpetual  renewal,  it  was  held  that  the  lessee  was  bound 
to  pay  taxes.  The  arguments  of  counsel  which  were  evidently  adopted 
bv  the  court  were  that  the  lessee  had  covenanted  absolutely  to  pay  rent 
without  deduction  of  any  kind  and  that  a  covenant  was  to  be  con- 
strued most  strongly  against  the  covenantor.  Furthermore  as  the 
lessor  had  expressly  covenanted  for  quiet  enjoyment,  no  further  cove- 
nants could  be  raised  by  implication  against  him.  The  consequent 
hardships  on  the  landlord  was  also  used  as  an  argument  for  imposing 
the  liability  on  the  tenant."^ 

If  a  tenant  erects  buildings  which  by  the  terms  of  the  lease  remain 
his  property,  the  landlord  is  not  bound  to  pay  taxes  on  such  improve- 
ments but  the  tenant  must  pay  them."**  A  provision  in  a  lease  giving 
the  lessee  the  right  to  remove  buildings  erected  by  him  on  the  leased 
premises,  makes  such  buildings  personal  property  taxable  to  the 
lessee.'^^^  If  the  right  to  remove  buildings  is  reserved  to  the  lessee  in 
a  lease,  then,  in  such  case,  he  will  be  regarded  as  an  owner  of  the 
property  for  the  purpose  of  taxation.  But  some  sort  of  agreement  is 
necessary  to  prevent  the  operation  of  the  rule  that  structures  become 
a  part  of  the  realty  upon  which  they  are  erected."^  A  provision  that 
buildings  erected  on  the  premises  shall  become  the  property  of  the 
lessor  at  the  end  of  the  term  does  not  make  the  lessee  the  owner  dur- 
ing the  term  but  merely  negatives  the  possibility  of  a  power  of  re- 
moval in  the  lessee.'^^^  The  test  is  who  really  owns  the  structures.  A 
shed,  erected  by  a  lessee  on  a  pier  leased  from  a  city,  was  by  the  pro- 
visions of  the  lease  to  become  the  property  of  the  city  on  the  expira- 
tion of  the  lease.  As  the  shed  was  affixed  to  the  realty,  it  became  the 
property  of  the  city  immediately  and  could  not  be  assessed  for  taxa- 
tion against  the  lessee.^**'  Yet  a  tenant  would  be  liable  to  pay  taxes 
on  a  house  standing  on  the  demised  premises  which  was  owTied  by  him 
even  though  the  lessor's  interests  were  exempt  from  taxation.'^'*^  How- 
ever, a  covenant  by  a  lessee  to  pay  taxes  does  not  bind  him  to  pay 
those  from  which  the  landlord  would  be  exempt. '*- 

"^  Hughes  v.   Young,   5    Gill   &   J.  pay  taxes  on  the  improvements,  and 

(Md.)  67.  the   lessor   was  only   liable   for   the 

™  Leach   v.    Goode,    19    Mo.    501;  taxes  levied   at  the   original  valua- 

Luttrell  V.  Knox  County,   89   Tenn.  tion.     Smith    v.    Humble,    15    C.    B. 

253,  14  S.  W.  802.  321,  80  E.  C.  L.  321. 

"'East    Tennessee    &c.    R.    Co.    v.  ""People  v.  Barker,  153  N.  Y.  08, 

Mayor  &c.  (Tenn.),  35  S.  W.  771.  47  N.  E.  31. 

™  People  V.  Commissioners  &c.,  80  '"  Parker    v.    Redfield,    10    Conn. 

N.  Y.  573.  490. 

™So    in   an    English    case    where  "<- Philadelphia   &c.   R.   Co.  v.  Ap- 

there  was  a   building  lease   it   was  peal  Tax  Court,  50  Md.  397. 
held  that  the  lessee  was  bound  to 


413] 


COVENANTS    IN   LEASES. 


458 


§  413.  In  many  jurisdictions  it  has  by  statute  been  made  the  duty 
of  the  tenant  holding  any  leasehold  estate  to  pay  the  taxes  levied  on 
the  demised  premises.  But  the  tenant  so  paying  has  been  given  his 
right  of  action  to  recover  such  money  of  the  landlord,  as  money  paid 
for  his  use  or  the  right  to  deduct  the  same  from  the  rent  reserved, 
unless  otherwise  agreed.  This  provision  was  intended  as  a  means  of 
facilitating  the  collection  of  taxes,  tliere  being  many  cases  where  the 
landlord  might  not  be  known  or  might  be  absent."*^  Ordinarily,  one 
who  voluntarily  pays  the  debt  of  another  cannot  recover  the  sum  paid, 
but  taxes  paid  by  the  tenant  are  not  a  voluntary  payment."*^"  The 
land  itself  is,  in  fact,  the  debtor  to  the  public,  and  prima  facie  it  is 
the  tenant's  tax,  because  all  the  remedies  are  against  him.'*^  If 
the  tenant  pays  the  taxes  without  any  compulsion  in  pursuance  of  a 
previous  invalid  undertaking  on  his  part,  it  will  be  regarded  as  a 
voluntary  payment  and  cannot  be  recovered  back  from  the  landlord.^*® 
If  there  be  a  special  contract  that  the  lessee  shall  deduct  from 
the  rental  all  taxes  levied,  or  to  be  le\aed  upon  the  leased  property, 
such  a  contract  would  unquestionably  be  good  and  in  case  the  lessee 
were  granisheed,  he  would  be  entitled  to  his  discharge,  even  though  at 
the  time  of  the  trial  the  liability  was  still  undetermined  and  contin- 
gent.'^*'^ A  special  agreement  of  this  nature,  entitling  the  lessee  to 
deduct  from  the  rent  amounts  paid  as  taxes  was  not  invalidated  by  the 


'« Philadelphia  &c.  R.  Co.  v.  Ap- 
peal Tax  Court,  50  Md.  397;  Cald- 
well v.  Moore,  11  Pa.  St.  58;  Kitchen 
V.  Smith,  101  Pa.  St.  452.  In  the 
last  citation  the  doctrine  was  applied 
in  the  case  of  an  oil  lease.  In  Eng- 
land a  local  act  provided  that  a 
drainage  tax  should  he  paid  by  ten- 
ants, who  might  deduct  and  retain 
the  same  out  of  the  rents,  and  it 
was  also  provided  that  the  tax 
might  be  levied  by  distress  on  the 
goods  and  chattels  on  the  premises. 
The  meaning  of  this  act  was  to 
make  the  tax  payable  by  the  tenant 
in  whose  time  it  became  due.  If 
such  tenant  was  not  called  upon  to 
pay  it  till  after  the  rent  had  been 
paid,  he  had  the  right  to  require 
the  landlord  to  reimburse  him. 
Dawson  v.  Linton,  5  B.  &  Aid.  521, 
7   E.    C.   L.    285.     The    right   to    re- 


duce rent  by  the  amounts  paid  by 
the  tenant  as  taxes  had  previously 
been  recognized  in  Stubbs  v.  Par- 
sons, 3  B.  &  Aid.  516.  But  in  Saun- 
derson  v.  Hanson,  3  C.  &  P.  314,  it 
was  said  that  back  taxes  could  not 
be  recovered  by  the  tenant  if  he  had 
gone  on  paying  the  full  amount  of 
rent  with  no  deduction. 

'"  Carter  v.  Carter,  5  Bing.  406. 

'*'  Walker  v.  Harrison,  75  Miss. 
665,  23  So.  392. 

■«  McAnany  v.  Tickell,  23  U.  C.  Q. 
B.  499. 

"'  McPherson  v.  Atlantic  &c.  R. 
Co.,  66  Mo.  103;  St.  Louis  v.  Regen- 
fuss,  28  Wis.  144;  Thompson  v. 
Fischesser,  45  Ga.  369;  Wheelock  v. 
Tuttle,  10  Cush.  (Mass.)  123; 
Shearer  v.  Handy,  22  Pick.  (Mass.) 
417. 


459  TO    PAY   TAXES.  [§    414 

English  statutory  provision'^  *^  forbidding  any  agreement  which  would 
throw  the  burden  of  taxation  on  the  tenant.  Such  an  agreement  does 
not  come  within  the  mischief  to  be  guarded  against.  There  is  nothing 
in  the  statute  to  invalidate  an  agreement  by  the  landlord  to  repay  the 
amount  if  the  tenant  will  refrain  from  insisting  on  the  deduction  from 
the  rent.''*®  Furthermore  the  lessee  might  be  enabled  to  recover  back 
from  the  lessor  sums  paid  as  taxes,  even  though  the  taxes  could  not 
be  assessed  as  a  personal  obligation  or  liability  of  the  lessee.  If  to 
save  the  leased  premises  from  sale  and  to  prevent  his  consequent  evic- 
tion therefrom,  the  lessee  should  pay  the  taxes,  it  cannot  be  doubted 
but  that,  without  any  express  agreement  in  the  lease,  he  could  with- 
hold it  from  the  rent  or  maintain  assumpsit  to  recover  it  from  the 
lessor.''^" 

When  the  lease  is  for  life,  however,  the  general  equitable  principle 
which  apportions  the  charges  upon  real  estate  ratably  places  the  bur- 
den on  the  tenant  to  keep  down  the  taxes  and  to  keep  the  premises  in 
repair.  This  obligation  on  the  life  tenant  does  not  rest  in  covenant, 
express  or  implied,  but  in  equity,  and  exists  as  an  incident  of  the  es- 
tate. When  one  contracts  for  a  life  estate  he  must  be  presumed  to 
contract  with  reference  to  the  incidents  thereto  attached.  The  reser- 
vation of  rent  does  not  change  the  nature  of  the  estate  nor  create  an 
equity  in  favor  of  the  tenant  for  life."^  This  obligation  resting  on 
a  tenant  for  life  would  pass  to  an  assignee  upon  an  assignment  of  the 
term  and  it  is  the  duty  of  such  assignee  to  pay  all  taxes  assessed  dur- 
ing his  tenancy.  If  he  neglects  it  and  suffers  the  land  to  be  sold  for 
the  taxes,  he  can  acquire  no  right  to  the  estate  against  the  owner  of 
the  fee  by  buying  in  the  tax  title. "^ 

§  414.  The  price  charged  for  water  by  a  city  is  not  a  tax  or  assess- 
ment chargeable  upon  the  premises  which  the  tenant  being  compelled 
to  pay  may  recover  from  the  landlord ;  but  is  a  commodity  which  the 
tenant  may  take  or  decline  at  his  option.  The  price  charged  for  it  is 
not  a  tax  any  more  than  the  price  charged  for  gas,  electricity,  steam, 

'"  5  &  6  Vict.,  c.  35,  §  103.  ""•-  Prettyman   v.   Walston,    34    111. 

"*Lamb  v.   Brewster,   4   Q.   B.  D.     175,  190;  Varney  v.  Stevens,  22  Me. 

220.  331;    Hughes  v.  Young,  5  Gill  &  J. 

'^"McPherson  v.  Atlantic  &c.  R.  (Md.)  67;  Cairns  v.  Chabert,  3  Edw. 
Co.,  66  Mo.  103;   Wells  v.  Porter,  7     Ch.    (N.   Y.)    312;    Burhans  v.   Van 

Wend.     (N.    Y.)     120;     Hammon  v.     Zandt,  3  Seld.  (N.  Y.)  523;  Trustees 

Sexton,  69  Ind.  37.  of   Elmira   v.    Dunn,   22   Barb.    (N. 

'"Carter    v.    Youngs,    42    N.  Y.     Y.)  402. 
Super.  Ct.  418. 


§  414]  COVENANTS  IN  LEASES.  460 

or  coal,  some  of  which  are  as  necessary  commodities  as  water,  Nor 
does  the  fact  that  the  city  supplies  water  and  a  private  corporation 
supplies  gas  make  one  a  tax  rather  than  the  other.''^^  The  city  has  no 
lien  on  the  premises  for  the  payment  of  water  bills,  and  so  the  charge 
is  not  an  incumbrance  which  the  tenant  is  presumed  to  pay  on  account 
of  the  landlord. '^^*  In  the  absence  of  agreement,  a  landlord  is  not 
bound  to  pay  tax  rates  for  city  water  used  by  the  tenant  though  the 
house  is  piped  therefor.  The  landlord  is  under  no  greater  obligation 
than  he  would  be  to  pay  for  gas,  because  the  house  demised  is  piped 
for  gas.'^^^  The  lessee  cannot  recover  amounts  paid  on  this  account 
without  showing  in  some  way  that  the  lessor  was  liable  for  the  water 
rates.  No  agreement  to  pay  them  could  be  implied  because  the  water 
was  essential  to  the  premises  for  the  purpose  for  which  they  were 
leased.  It  can  hardly  be  said  that  the  landlord  impliedly  agrees  to 
pay  for  whatever  is  essential  to  the  use  of  the  premises  which  he 
leases.^^^  But  it  does  not  necessarily  follow  in  every  instance  that  a 
lessor  who  has  paid  water  rates  can  recover  them  back  from  the  lessee. 
It  may  have  been  the  understanding  that  the  lessor  should  furnish 
the  water  gratuitously  or  that  it  should  be  supplied  to  the  lessee  as  an 
appurtenance  of  the  leased  premises.  Such  seems  to  have  been  the 
case  where  the  water  was  furnished  at  the  request  of  the  lessor,  and 
he  had  in  prior  years  paid  for  it.'^^^ 

However  the  rule  seems  to  be  different  when  the  water  rent  is  made 
a  lien  on  the  premises.  In  a  case  holding  the  lessor  was  liable  to  pay 
water  rates,  the  court  enumerated  the  points  of  similarity  to  a  tax 
as  follows :  "It  will  thus  be  seen  that  these  rents  possess  many  of  the 
essential  elements  of  a  tax ;  they  are  general  and  annual,  and  imposed 
for  a  public  purpose,  and  from  the  time  of  their  imposition  they  be- 
come both  'ordinary  and  yearly'  burdens;  they  constitute  a  lien  on 
the  property  and  are  collectible  in  the  same  manner  as  ordinary  taxes.'* 
The  conclusion  of  the  court  is  that  such  water  rents  may  fairly  be 
considered  as  within  the  term  "taxes"  so  as  to  be  included  in  the  ten- 
ant's covenant  to  pay  all  taxes.'' ^^  It  is  obviously  possible  for  a  mu- 
nicipal corporation  which  goes  into  the  business  of  supplying  its  mem- 

™  Sheldon  v.  Hamilton,   22  R.   I.  ''^^  McCarty  v.  Humphrey,  105  Iowa 

230,  47  Atl.  316;   Badcock  v.  Hunt,  535,  75  N.  W.  314. 

22  Q.  B.  D.  145.  '''^  Leighton   v.    Ricker,    173    Mass. 

"^  Turner    v.    Revere    Water    Co.,  564,  54  N.  E.  254. 

171  Mass.  329,  50  N.  E.  634;  Leigh-  ^"  Jamesin  v.  Thomen,  24  Cinn.  L. 

ton  V.  Ricker,  173  Mass.  564,  54  N.  B.  (Ohio)  334. 

E.  254;   Sheldon  v.  Hamilton,  22  R.  '-'Garner  v.  Hannah,  6  Duer   (N. 

I.  230,  47  Atl.  316.  Y.)   262. 


461  TO    PAY   TAXES.  [§    414 

bers  with  water,  to  defray  tlie  expense  of  such  undertaking  by  a  tax 
levied  according  to  valuation  of  real  estate,  street  frontage  or  in  some 
other  manner.  Where  this  mode  is  adopted,  the  charge  for  water 
would  be  a  tax  and  in  the  absence  of  agreement  would  fall  upon  the 
lessor.'''^  But  even  where  the  expense  of  maintaining  a  waterworks 
system  is  in  part  defrayed  by  the  levy  of  a  special  tax,  there  is  no 
reason  why  in  some  instances  the  water  should  not  be  measured  off  by 
a  meter  and  sold  as  a  commodity.  The  landlord  might  be  liable  for 
the  usual  and  ordinary  water  rates  which  were  assessed  according  to 
the  frontage  of  the  building,  and  yet  be  under  no  implied  obligation 
to  pay  for  the  extraordinary  use  of  water  in  large  quantities.  It 
cannot  be  contended  that  there  is  any  implied  obligation  on  the  part 
of  the  landlord  to  pay  for  extra  water  used  for  the  exclusive  benefit 
of  the  tenant.'^^°  Where  a  lessee  had  covenanted  to  pay  the  regular 
water  rates,  there  would  seem  to  be  even  greater  reason  for  making 
him  pay  for  extra  water,  measured  off  by  a  meter  and  used  in  relation 
to  his  business.  But  the  court  held  the  contrary,  on  the  ground  that 
there  was  nothing  in  the  statutes  making  the  actual  consumer  of  the 
extra  water  personally  liable  for  the  meter-rates.'*'^ 

All  doubt  as  to  the  responsibility  for  water  bills  may  be  settled 
by  a  covenant  in  the  lease  that  the  lessee  undertakes  to  pay  them. 
Such  a  covenant  is  not  to  be  regarded  as  a  mere  declaration  as  to  who 
is  to  pay  for  the  gas  and  water  furnished  on  the  premises.  There  is 
no  ambiguity  as  to  whom  the  water  rates  are  to  be  paid  to.  They 
are  payable  to  the  company  furnishing  the  water.  So  when  a  tenant 
covenants  to  pay  water  rates  or  gas  bills,  it  is  as  much  a  condition  of 
his  holding  as  any  other  covenant  in  the  lease. '^*'- 

^*  Williams  v.  Kent,  67  Md.  350,  10  question  appears  to  me  to  be  wheth- 

Atl.  228;  Darcey  v.  Steger,  23  Misc.  er  this  water  rate  can  be  said  to  be 

(N.  Y.)    145;    Moffat  v.  Henderson,  a     rate     or     imposition     'imposed' 

50  N.  Y.  Super.  Ct.  211.  within  the  meaning  of  those  words. 

™  Williams  v.   Kent,   67   Md.  350,  I  do  not  think  that  it  can.     I  do  not 

10  Atl.  228.  think  that  a  charge  can  be  said  to 

'"  Moffat  v.   Henderson,   50   N.   Y.  be    imposed    upon    him    within    the 

Super.  Ct.  211.  meaning  of  this  covenant.     If  a  man 

"'-Hand  v.  Suravitz,  148  Pa.  St.  buys  things  in  a  shop,  the  liability 
202,  23  Atl.  1117.  In  Badcock  v.  to  pay  the  price  may  be  said  in  one 
Hunt,  22  Q.  B.  D.  145,  the  lessor  sense  to  be  imposed  on  him  by  law, 
covenanted  to  pay  "all  rates,  taxes  but  that  is  not,  in  my  opinion,  the 
and  impositions  whatsoever,  wheth-  sense  in  which  the  terms  imposed 
er  parliamentary,  parochial  or  im-  and  imposition  are  used  in  this 
posed  by  the  corporation  of  the  city  covenant.  Furthermore,  I  think 
of  London,  or  otherwise  howso-  the  words  'imposed  otherwise  how- 
ever."     Lord     Esher     said:      "The  soever'  must  be  construed  agreeably 


§■   415]  COVENANTS    IN   LEASES.  46^ 

§  415.  The  intention  of  the  parties,  as  shown  by  the  language  of 
the  instrument,  determines  what  taxes,  burdens  and  assessments  are 
to  be  borne  by  the  lessee.  In  the  early  English  cases  the  distinction 
was  made  between  an  entirely  new  kind  of  tax  and  the  fresh  levy  of 
a  tax  which  had  been  previously  imposed.  A  lessee's  covenant  would 
not  oblige  him  to  pay  a  new  tax ;  it  must  be  understood  of  such  taxes 
as  were  then  in  use.'^®^  Still  the  language  of  the  covenant  might  be 
such  as  to  provide  for  the  payment  of  a  tax  of  an  entirely  new  kind.''^* 
Moreover  a  covenant  in  the  ordinary  form  was  held  to  bind  the  lessee 
to  pay  all  land  taxes  whatsoever,  although  there  was  no  land  tax  at 
the  time  and  it  was  ordered  long  after  the  making  of  the  covenant. 
And  the  reason  was  because  the  land  tax  was  known  and  understood, 
and  was  to  be  levied  as  occasion  required.'' ^^  The  rule  recognized 
and  adopted  in  these  cases  is,  that  if  the  tax  or  assessment  be  made 
under  a  law  existing  at  the  time  of  the  covenant,  it  is  within  such 
covenant;  or  if  there  be  no  law  existing  at  the  time  authorizing  or 
requiring  it,  but  it  is  afterward  enacted,  still  if  the  assessment  or  tax 
be  of  the  same  kind  with  taxes  or  assessments  made  under  former 
acts,  it  is  presumed  to  have  been  in  the  contemplation  of  the  parties 
as  a  tax  in  viris  though  not  in  esse.  But  if  such  tax  or  assessment  be 
different  in  kind  from  such  as  have  been  heretofore  in  esse,  it  is  not  to 
be  presumed  that  the  parties  contemplated  any  unusual  exercise  of 
power  in  the  legislature,  such  as  it  had  never  before  exercised.  These 
principles  were  applied  by  the  Supreme  Court  of  Ehode  Island  in 
1859  to  a  betterment  assessment  for  laying,  widening  and  altering 
highways.  The  court  say:  "In  looking  back  to  past  legislation,  we 
look  in  vain  for  any  taxes  or  assessments  made  upon  any  principle  for 
any  similar  purpose.  .  .  .  In  no  case  either  for  highway  or  other 
public  improvements,  have  lands  been  taxed  for  the  value  added 
thereto  by  the  public  improvement.  This  is  certainly  a  departure 
from  any  known  mode  or  purpose  of  assessments.  So  novel  and  ex- 
traordinary did  the  provisions  of  this  act  appear  when  it  went  into 
effect,  that  it  was  seriously  and  earnestly  denied  to  be  within  the  con- 
stitutional power  of  the  legislature  to  enact  it.     .     .     .     We  are  of 

to  the  rule  of  construction  applica-  "^  Davenant  v.  Bishop   of   Sarum, 

ble  when  general  words  follow  spe-  2  Lev.   68;    Brewster  v.  Kidgill,  12 

cific  words,  and  that  therefore  they  Mod.  166;   Hopwood  v.  Barefoot,  11 

can   only    include   rates    or    imposi-  Mod.  238. 

tions  imposed  in  a  similar  manner  ^"^^  Hopwood   v.   Barefoot,   11   Mod. 

to     parliamentary     and     parochial  238. 

rates,     viz.,     imposed     compulsorily  ™  Giles  v.   Hooper,  Carthew   135; 

upon  the  person  charged."  Bradbury  v.  Wright,  2  Doug.  624. 


II 


463  TO   PAY   TAXES,  [§415 

opinion  that  this  assessment  was  not  within  the  defendant's  cove- 
nant."^«« 

However  true  and  forcible  these  Arguments  were  at  the  time  they 
were  made,  the  levying  of  special  assessments  to  pay  for  betterments 
has  since  then  become  so  familiar  a  practice  that  they  would  have  no 
application  at  the  present  day.  So  a  lessee's  general  covenant  to  pay 
taxes,  duties,  etc.,  may  bind  him  to  pay  special  assessments  levied  on 
the  property  for  betterments.'^^^  The  question  then  becomes  one  as 
to  intention;  whether  the  language  used  indicates  an  intent  that  he 
shall  be  bound  to  pay  this  kind  of  burden. 

While  in  a  general  sense  the  word  "taxes"  includes  special  assess- 
ments, yet  there  is  a  clear  distinction  between  the  two ;  special  assess- 
ments are  a  peculiar  class  of  taxes  which  are  laid  upon  the  property 
benefited  according  to  some  equitable  rule,  while  taxes,  as  generally 
understood,  mean  the  burdens  imposed  by  the  government  to  defray 
its  expenses.  A  promise  to  pay  taxes  does  not  apply  to  a  special  as- 
sessment for  the  construction  of  a  sewer. '^''^  A  covenant  to  pay  "all 
taxes  or  duties  levied,  or  to  be  levied,"  does  not  include  a  special  tax 
for  paving  a  sidewalk. "^^  A  private  assessment  for  paving  a  street  is 
not  a  tax  or  public  due  of  any  kind  within  the  meaning  of  the  cove- 
nants in  a  lease.'^'^*'  And  conversely,  in  conformity  with  a  statutory  dis- 
tinction as  to  terms,  it  has  been  held  that  a  condition  in  a  lease  that  the 
lessee  shall  "pay  all  assessments  whatsoever  levied  on  said  premises," 
does  not  bind  him  to  pay  state,  city  or  county  taxes  for  general  pur- 
poses.''''^ But  a  general  covenant  to  pay  taxes  and  assessments  of  any 
kind  bound  a  lessee  with  a  twenty-year  term  to  pay  a  betterment  as- 
sessment for  altering  a  street.''^-  A  covenant  by  a  lessee  to  pay  special 
taxes  prima  facie  includes  an  assessment  for  street  improvements.'''^ 
And  an  agreement  to  pay  all  taxes,  charges  and  impositions  was  held 
to  bind  a  lessee  to  pay  a  special  assessment.'"*  So  a  lessee  was  held 
liable  to  pay  a  special  assessment  for  a  betterment  where  he  cove- 

™  Love    V.    Howard,    6    R.    I.    116,  ""*  Twycross  v.    Fitchburg  R.   Co., 

125,  per  Brayton,  J.  10  Gray  (Mass.)   293. 

'*"  Blake  v.  Baker,  115  Mass.  188;  '•»  Boiling  v.  Stokes,  2  Leigh  (Va.) 

Curtis  V.  Pierce,  115  Mass.  186;   Si-  178. 

mondg  v.  Turner,  120  Mass.  328.  "^  Stephani   v.   Catholic  Bishop,   2 

"'  Ittner  v.  Robinson,  35  Neb.  133,  111.  App.  249. 

52  N.  W.  846;   De  Clercq  v.  Barber  '"  Codman  v.   Johnson,   104   Mass. 

&c.   Co.,   167   111.   215,   47   N.   E.   367,  491. 

affirming    66    111.    App.    596;    Mayor  '"Lucas  v.  McCann,  50   Mo.  App. 

&c..   Matter   of,    11    Johns.    (N.    Y.)  638. 

77;  Bleecker  v.  Ballou,  3  Wend.  (N.  "^  Bleecker  v.  Ballou,  3  Wend.  (N. 

Y.)  263.  Y.)  263. 


§  416]  COYEXAXTS  IX  LEASES.  464 

nanted  to  pay  "all  taxes,  assessments,  impositions  and  payments,  pay- 
able out  of  and  for  the  demised  premises."^^^  The  same  result  was 
reached  where  the  agreement  included  "all  and  singular  the  taxes, 
rates,  charges  and  assessments  which  shall  or  may  from  time  to  time 
and  at  any  time  be  levied,  assessed  or  made  on  the  demised  premises, 
or  in  respect  of  the  same,  for  or  on  account  of  any  matter  or  cause 
whatever.""^ 

Where  a  lease  contained  covenants  that  the  lessee  should  pay  all  as- 
sessments for  paving,  flagging  or  repairing  the  streets  but  that  im- 
provements of  a  public  character  or  for  permanent  improvements 
should  be  paid  by  the  lessor,  it  was  held  that  the  substitution  of 
granite  blocks  for  cobble  stones  was  a  permanent  improvement  and 
the  cost  of  it  must  be  borne  by  the  lessor.""" 

A  general  covenant  by  a  lessee  to  pay  all  taxes  does  not  bind  him 
to  pay  a  license  fee  which  is  charged  against  the  lessor  in  respect  to 
its  corporate  franchise.  To  hold  that  the  act  imposed  a  tax  on  fran- 
chises would  be  to  declare  it  in  contravention  to  the  constitution  of  the 
state  and  would  destroy  the  act  itself. '^^^ 

§  416.  If  a  lessee  of  a  part  of  a  building  covenants  with  the  lessor 
that  he  will  pay  the  taxes  which  may  be  payable  or  assessed  in  re- 
spect to  the  premises,  the  landlord  may  prove  a  usage  to  apportion 
taxes  among  different  tenants  according  to  the  amount  of  rent  paid 
by  each.'^'^'*  The  Massachusetts  Court  said  on  this  question :  "Though 
an  estate  is  leased  to  several  independent  tenants,  taxes  are  uniformly 
assessed  against  the  whole  estate.  The  covenant  of  each  tenant  to 
pay  taxes  cannot  be  construed  to  mean  the  taxes  upon  the  whole  es- 
tate. From  the  nature  of  the  case  some  mode  of  apportioning  the 
whole  tax  must  be  contemplated  by  the  parties.  The  usage  to  appor- 
tion it  in  proportion  to  the  rents  paid  by  the  tenants  is  a  convenient 
and  reasonable  usage,  and  in  the  absence  of  any  express  stipulation 
upon  the  subject,  the  parties  must  be  deemed  to  have  contracted  in 
reference  to  it."  In  reply  to  the  argument  that  separate  assessments 
should  be  made,  the  same  court  said  in  another  case:  "The  precise 
sum  could  not  be  fixed  in  the  lease,  because  it  would  necessarily  be 

''^  Mayor     &c.     v.     Cashman,     10  ••'  Ten  Eyck  v.  Rector  &c.,  20  N. 

Johns.     (N.    Y.)     96;     Davenant    v.  Y.  S.  157,  65  Hun  194. 

Bishop  of  Sarum,  2  Lev.  68,  1  Vent.  "'  Jersey   City   &c.   Co.  v.    United 

223;     Brewster    v.    Kitchin,    1    Ld.  Gas.  Imp.  Co.,  46  Fed.  264. 

Raym.  317,  1  Salk.  198.  '"^Amory  v.  Melvin,  112  Mass.  83; 

"« Walker     v.     Whittemore,     112  Codman    v.    Hall,    9   Allen    (Mass.) 

Mass.  187.  335. 


465  TO   PAY  TAXES.  [§    417 

uncertain  and  might  vary  from  year  to  year.  ISTor  could  the  mode  of 
apportionment  be  well  made  to  depend  on  the  act  of  the  assessors  of 
the  city.  They  were  not  obliged  to  regard  the  special  agreements  of 
individuals  as  to  the  mode  of  assessing  or  apportioning  taxes  on  their 
property.  The  plaintiffs  had  no  power  to  compel  a  separate  assess- 
ment of  different  parts  of  the  same  estate  belonging  to  them."^®'' 

However  there  is  an  Illinois  case  holding  that  in  the  absence  of  such 
usage  a  clause  in  a  lease  that  the  tenant  shall  pay  all  water  rents 
taxed,  levied  or  charged  on  the  demised  premises  during  the  term  does 
not  apply  to  one  of  several  tenants  of  a  building  or  block  where  the 
water  tax  assessment  is  in  bulk  against  the  entire  block.'^*^ 

§  417.  Levy  distinguished  from  assessment. — The  word  '^evy"  is 
synonymous  with  "collect"  or  "raise  by  collection"  and  is  entirely 
distinct  from  "assess."  "Levy"  and  "assess"  are  not  convertible  terms 
as  applied  to  taxation ;  to  assess  a  tax  is  to  declare  it  payable ;  to  levy 
it  is  to  collect  it.^^^  So  the  words  of  the  covenant  are  to  be  looked  to 
in  determining  whether  a  lessee  is  bound  for  taxes  assessed  during  the 
term  or  only  for  those  actually  levied  during  that  time.  A  general 
covenant  on  the  part  of  a  lessee  to  pay  taxes  during  his  lease  binds 
him  to  pay  those  which  were  assessed  during  the  term  but  which  did 
not  become  payable  till  after  it  terminated.'^*^  The  promise  contained 
in  such  a  covenant  is  not  to  pay  the  taxes  and  assessments  which  shall 
or  may  be  payable  during  the  term,  but  those  which  may  be  payable 
for  or  in  respect  of  the  premises  during  the  term,  at  whatever  period 
of  time  they  shall  become  or  be  payable.  It  is  plain  that  the  parties 
did  not  contemplate  or  intend  the  assumption,  on  the  part  of  the 
lessee,  of  any  liability  to  pay  those  taxes  which  had  been  assessed  and 
made  chargeable  upon  the  estate  anterior  to  the  commencement  of  the 

^^Wall  V.  Hinds,  4  Gray   (Mass.)  the  collector.     Valle  v.  Fargo,  1  Mo. 

256,  267,  per  Blgelow,  J.  App.  344."     The  principal  case  also 

'"Kingsbury   v.    Powers,    131    111.  defines  the  word  "laid"  when  used 

182,  22  N.  E.  479.  in  regard  to  the  imposing  of  a  tax, 

"-Valle  v.  Fargo,  1  Mo.  App.  344.  and   holds  that  it  is  equivalent  to 

In  Elliot  v.  Gantt,  64  Mo.  App.  248,  assess. 

Biggs,  J.,  says:  "The  word  levy  as  '« Blythe  v.  Gately,  51  Cal.  236; 
used  in  the  revenue  law  has  been  Salisbury  v.  Shirley,  53  Cal.  461; 
construed  by  this  court  to  be  Henry  v.  Chrisinger,  76  Iowa  126, 
synonymous  with  the  word  collect,  40  N.  W.  121;  Wilkinson  v.  Libbey, 
and  it  has  been  held  that  a  tax  can  1  Allen  (Mass.)  375;  Craig  v.  Sum- 
not  be  said  to  be  levied  until  the  mers,  47  Minn.  189,  49  N.  W.  742; 
books  are   placed   in   the  hands  of  Elliot  v.  Gantt,  64  Mo.  App.  248. 

Jones  L.  &  T.— 30 


§  417]  COVENANTS  IN  LEASES.  466 

term,  and  which  should  become  and  be  due  and  payable  during  its 
continuance.'^**  A  general  covenant  by  a  tenant  to  pay  all  taxes  levied 
on  the  premises  during  the  term  does  not  extend  to  general  taxes 
which  are  payable  during  the  term,  but  were  assessed  before  the  term 
began  and  were  therefore  a  lien  on  the  property  when  the  term  began, 
and  were  levied  for  a  period  wholly  anterior  to  it.''*^  However,  in  a 
case  where  the  certificate  issued  and  the  amount  of  the  tax  was  in- 
serted in  the  assessment  roll  during  the  term,  a  lessee  was  held  on 
his  covenant  to  pay  taxes,  even  though  the  tax  was  to  raise  money  for 
paving  done  before  the  term  began.  The  lien  accrued  and  the  assess- 
ment was  made  during  the  term;  and  the  language  of  the  covenant 
was  that  the  defendants  were  "to  pay  all  taxes  and  assessments  levied 
or  assessed  thereon  during  said  term."^®^ 

A  covenant  to  pay  all  taxes  assessed  during  a  term  renders  the  lessee 
under  obligation  to  pay  taxes  assessed  at  the  beginning  of  a  fiscal  year,, 
although  the  lease  terminates  in  the  middle  of  the  year.  A  clause  in 
the  lease  at  the  end  of  the  covenant  "including  the  taxes  for  the  previ- 
ous fiscal  year,"  does  not  limit  the  covenant.'^*^  On  the  same  principle 
where  a  lease  for  ten  years  and  six  months  contained  a  covenant  to 
pay  taxes,  it  was  held  that  the  lessee  must  pay  the  taxes  which  were 
afiseseed  during  the  last  six  months  for  an  entire  year.'**  An  agree- 
ment in  a  lease  to  pay  all  taxes  "that  may  be  assessed,  levied  upon  or 
charged  against"  the  leased  property  during  a  certain  period  binds  the 
lessee  to  pay  taxes  which  were  assessed  prior  to  the  termination  of  the 
lease,  though  not  levied  until  afterwards."*^ 

In  law  taxes  are  regarded  as  assessed  on  the  regular  date  for  assess- 
ment whether  the  assessment  is  actually  made  or  not.  If  it  be  con- 
tended for  a  lessee  that  his  lease  expired  before  the  board  of  assessors 
fixed  the  rate  of  taxation  and  assessed  the  tax,  the  answer  is  that  it 
is  immaterial  when  the  valuation  of  estates  is  completed  or  when  the 
tax  is  payable.  The  assessment,  when  completed,  relates  back  to  the 
first  of  May,  and  the  tax  is  in  law  regarded  as  assessed  on  that  day.^^*^ 

The  term  taxable  year  in  a  certain  calendar  year  was  held  to  mean 
the  fiscal  year  beginning  on  the  previous  calendar  year.'^^^ 

'"  Wilkinson    v.    Libbey,    1    Allen  '^  Salisbury  v.  Shirley,  53  Cal.  461. 

(Mass.)   375;   Craig  v.  Summers,  47  "''Waterman  v.   Harkness,   2   Mo. 

Minn.  189,  49  N.  W.  742.  App.  494. 

'^^McManus  v.  Fair  Shoe  &c.  Co.,  ^'"Amory  v.  Melvin,  112  Mass.  83; 

60  Mo.  App.  216.  Elliot  v.  Gantt,  64  Mo.  App.  248. 

'»« Shepardson  v.  Elmore,  19  Wis.  '"  De   Giverville  v.   Legg,   48   Mo. 

424.  App.  573.    A  lease  under  which  ten- 

'"  Blythe  v.  Gately,  51  Cal.  236.  ant  covenanted  to  pay  all  taxes  and 


I 


467  TO  PAY  TAXES.  [§§   418,  419 

§  418.  Invalid  taxes. — Where  lessee  of  premises  agrees  to  pay  all 
assessments  that  may  be  levied  thereon,  iie  in  fact  agrees  to  pay  such 
assessments  only  as  are  valid  or  such  as  can  be  legally  enforced  against 
the  lessor  or  against  the  property."-  A  claim  that  a  lessee,  having 
stipulated  in  a  lease  to  pay  the  taxes  on  the  property,  is  thereby  es- 
topped from  urging  their  invalidity  is  fallacious.  The  lessee,  by  the 
provision  in  the  lease,  did  not  preclude  himself  from  urging  the  in- 
validity of  any  taxes  that  should  be  assessed  against  the  property. 
His  obligation  was  to  pay  the  legal  taxes  such  as  a  special  assessment 
that  might  be  levied  by  the  city  in  this  case.'^^^  No  estoppel  can  l)e 
raised  against  a  lessee  to  assert  the  invalidity  of  a  tax,  as  long  as  he 
has  no  special  knowledge  of  the  validity  or  invalidity  and  has  done 
nothing  to  mislead  or  influence  the  lessor.  It  is  only  necessary  to 
protect  the  lessee  that  he  did  not  know  or  pretend  to  know  anything 
concerning  the  validity  of  the  tax.'^^* 

§  419.  The  destruction  of  the  leased  premises  does  not,  as  a  gen- 
eral rule  release  the  tenant  from  his  covenant  to  pay  taxes.'^'^^  This 
is  true,  although  the  building  is  destroyed  soon  after  the  tax  is  as- 
sessed and  the  lease  comes  to  an  end  by  force  of  one  of  its  own  pro- 
\asions.  A  further  agreement  by  a  grantee  from  the  lessor  to  payJtee- 
half  the  tax  would  not  relieve  the  lessee.  The  payment  of  half  the 
tax  was  merely  a  part  of  the  price  of  the  estate.  Whatever  price  was 
obtained  or  however  it  was  computed,  it  could  have  no  effect  upon  the 
covenant  of  the  lessee  to  pay  the  tax.'^'**'  Under  a  lease  in  which  lessee 
covenants  to  pay  all  taxes  assessed  during  the  term  upon  a  portion  of 
the  premises,  the  lessee  is  not  entitled  to  a  proportionate  return  of 
the  sums  paid  by  him  when  the  building  is  destroyed  by  fire  and  the 
lease  is  terminated.^^^  An  agreement  to  apportion  taxes  between 
lessor  and  lessee  under  certain  circumstances  is  valid  and  enforceable 
but  is  limited  in  its  operation  to  its  express  language.  Thus  a  special 
provision  for  the  apportionment  of  taxes  in  the  first  and  last  years  of 

assessments  was  surrendered  on  Oc-  ""^  Scott  v.  Society  &c.,  59  Neb.  571, 

tober   1,    after   taxes   had    been   as-  81  N.  W.  624. 

sessed,  which  would  not  become  due  "*  Clark  v.  Coolidge,  8  Kan.  189. 

till    January.     Held,    a    release    in  ^°' Paul    v.    Chickering,    117    Mass.  • 

general  terms  relieved  tenant  from  265;     Sargent    v.    Pray,    117    Mass. 

all    obligation    to   pay   these   taxes.  267;    Carnes   v.    Hersey,   117    Mass. 

Henry  v.   Chrisinger,   76   Iowa  126,  269. 

40  N.  W.  121.  ""Paul   v.    Chickering,    117    Mass. 

'"=  Clark  v.  Coolidge,  8  Kan.  189;  265. 

Scott  v.  Society  &c.,  59  Neb.  571,  81  "'  Wood  v.  Bogle,  115  Mass.  30. 
N.  W.  624. 


§  420]  COVENANTS  IN  LEASES,  468 

the  lease  leave  the  general  covenant,  to  pay  all  taxes  payable  for  or 
in  respect  of  the  i^remises  during  the  term,  unqualified  during  the 
intermediate  time.  It  strengthens  the  inference  that  there  was  no  in- 
tention to  apportion  taxes  in  case  of  a  destruction  of  the  premises.''^* 

§  420.  What  constitutes  a  breach. — In  the  absence  of  specific  lan- 
guage in  a  covenant  to  pay  taxes  it  is  difficult  to  determine  the  exact 
time  when  the  obligation  of  the  lessee  to  pay  accrues.  In  one  case  it 
was  assumed  that  the  tenant  was  entitled  to  delay  the  payment  thereof 
until  they  became  "delinquent"  under  the  statute.  However  this  was 
no  reason  why  the  lessor  should  not  pay  them  sooner  and  recover 
them  back  from  the  lessee  in  case  of  his  ultimate  default.  Still  there 
could  be  no  breach  of  the  covenant  to  pay  till  the  lessee's  obligation 
to  pay  accrued.'^^''  An  obligation  in  a  lease  requiring  lessee  to  pay 
taxes  or  forfeit  his  right  to  remove  improvements  simply  requires  him 
to  pay  them  in  the  ordinary  course  of  collection,  and  not  necessarily 
before  the  termination  of  the  lease.^"**  Actual  payment  of  the  de- 
linquent taxes  by  the  lessor  is  not  essential  to  his  right  to  maintain 
an  action  to  recover  the  amount  of  them.  On  lessee's  failure  to  pay 
assessments,  the  lessor  may  bring  suit  and  recover  the  full  amount  of 
the  assessments,  though  he  has  not  .paid  any  part  of  thein.  ^  The  cove- 
nant in  such  a  case,  it  was  held,  was  not  one  simply  of  indemnity,  but 
a  positive  agreement  to  pay  the  assessments  and  was  broken  when  the 
lessee  neglected  to  pay.  Upon  the  lessee's  neglect  to  pay,  a  cause  of 
action  at  once  accrues  to  the  lessor,  and  he  may  either  pay  the  tax 
and  sue  the  lessee  for  the  amount  or  may  sue  without  first  so  paying 
it  himself.  It  may  be  stated  as  the  general  rule  that,  when  the  de- 
fendant contracts  to  pay  a  debt  and  fails  to  do  so,  the  measure  of  dam- 
age is  the  amount  of  .the  debt;  but  when  the  contract  is  one  of  in- 
demnity only,  damages  must  be  sustained  before  a  recovery  can  be 
had.®"^  However,  there  is  a  case  holding  that  the  lessor's  right  of 
action  does  not  accrue  till  he  has  paid  the  overdue  taxes  himself.**"^ 

'"^Carnes  v.  Hersey,  117  Mass.  269.  App.  498.     The  court  say:    "Suppose 

"^  Wills  V.  Summers,  45  Minn.  90,  these   taxes   had   never   been   paid; 

47  N.  W.  463.  what  cause  of  action  would  Mrs.  S. 

*°*  Allen   V.   Dent,   4   Lea    (Tenn.)  have  against  the  county?    The  law 

676.  creates  an  implied  contract  that  the 

'"^  Rector  &c.  v.  Higgins,  48  N.  Y.  county  will  reimburse  her,  not,  how- 

532;    Fontaine   v.    Schulenburg   &c.  ever,  upon  the  written  contract,  but 

Co.,  109  Mo.  55,  18  S.  W.  1147;  Ham  upon  the  fact  of  payment,  and  this 

V.    Hill,    29    Mo.    275;     Rowsey    v.  implied   contract  creates  the  cause 

Lynch,  61  Mo.  560.  of  action,  and  it  accrues  as  soon  as 

*"=  Board   &c.   v.    Streeter,   2   Kan.  the  payments  are  made.     It  is  the 


II 


469  TO  PAY  TAXES.  [§    420 

In  an  action  for  a  breach  of  covenant  to  pay  taxes,  a  general  alle- 
gation in  the  complaint,  showing  that  the  premises  were  assessed  for 
state  and  county  purposes,  and  the  amount  of  the  taxes  due  thereon,  is 
sufficient.  Such  a  complaint  will  stand  the  test  of  a  general  de- 
murrer.^^^  Where  the  due  payment  of  taxes  is  one  of  the  covenants 
of  a  lease  and  the  taxes  are  allowed  to  become  delinquent  by  the  lessee 
or  his  assigns,  no  demand  for  their  payment  by  lessor  is  necessary  be- 
fore declaring  a  forfeiture.^^*  It  would  be  impossible  for  the  land- 
lord to  tell  when,  where,  and  what  to  demand.^°^  A  covenant  in  a 
lease  for  the  payment  of  taxes  does  not  require  demand  for  such  pay- 
ment before  a  forfeiture  may  be  had,  since  such  taxes  are  not  rent  to 
require  demand  but  are  wholly  matters  between  the  tenant  and  the 
proper  officer.®"^  But  where  the  landlord  is  given  his  option  to  pay 
assessments  and  collect  them  as  part  of  the  rent,  the  tenant  could 
not  be  expected  to  know  when  the  a.ssessments  were  due  and  could  not 
be  put  in  default  till  he  was  notified  of  the  levy  or  be  held  for  a 
breach  of  covenant. ^"^  A  statutory  provision  by  which  a  landowner 
is  given  an  option  to  extend  a  time  for  payment  of  assessments  by 
waiving  all  claims  of  their  illegality  cannot  be  exercised  by  a  tenant 
who  is  bound  by  a  covenant  in  his  lease  to  pay  taxes  and  assessments.^**^ 

Actual  payment  of  the  taxes  out  of  property  or  money  of  the  lessee 
is  all  that  the  lessor  can  insist  upon,  and  it  seems  that  the  leasehold 
estate  is  property  belonging  to  the  lessee  which  may  be  applied  to 
this  purpose.  So  in  a  case  where  a  tenant  neglected  to  pay  taxes  and 
his  leasehold  estate  was  sold  to  pay  them,  this  was  held  not  to  cause  a 
forfeiture.     Since  only  the  lessee's  title  had  been  taken,  it  was  just 

wrongs  done  (the  delicts)  that  ere-  *°*Byrane  v.  Rogers,  8  Minn.  281; 
ate  the  cause  of  action,  and  these  Bacon  v.  Park,  19  Utah  246,  57  Pac. 
are  not  complete  until  the  other  28;  Davis  v.  Burrell,  10  C.  B.  821,  70 
party  has  suffered  damage,  and  this  E.  C.  L.  821;  Garner  v.  Hannah,  6 
could  not  occur  in  this  case  till  she  Duer  (N.  Y.)  262,  overruling  Jack- 
paid.  "When  did  the  delicts  occur?  son  v.  Harrison,  17  Johns.  (N.  Y.) 
Take  the  earliest  possible  moment  66.  Contra,  Meni  v.  Rathbone,  21 
of  time  when  the  county  could  be  Ind.  454. 

said  to  be  in  default,  or  have  com-  *"^  Byrane  v.  Rogers,  8  Minn.  281. 

mitted  a  wrong.     Certainly  not  until  ^""  Metropolitan  Land  Co.  v.  Man- 

the  taxes  became  due.     But  can  she  ning,  98  Mo.  App.  248,  71  S.  W.  696; 

complain   at   this   time?     We   think  Davis  v.  Burrell,  10  C.  B.  821,  70  E. 

not,  for  she  has  not  been  harmed.  C.  L.  821. 

But   when    she   has   made   the   pay-  *"'  Dockrill  v.  Schenk,  37  111.  App. 

ment  she  is  damaged  to  the  amount  44. 

paid.     *     *"  ^'"*Vorse  v.  Des  Moines  Marble  &c. 

^"^  Ellis  v.  Bradbury,   75  Cal.   234,  Co.,  104  Iowa  541,  73  N.  W.  1064. 
17  Pac.  3. 


§•  420]  COVEXAXTS   IX    LEASES.  470 

the  same  as  if  the  tenant  had  taken  money  from  his  own  pocket  and 
paid  the  taxes.^"^ 

The  amoimt  of  damages  which  a  lessor  can  recover  from  his  lessee 
for  breach  of  a  covenant  to  pay  taxes  is  the  amount  paid  by  the  lessor 
as  taxes,  with  interest  from  the  date  of  the  payment,  not  including 
costs.  The  costs  incurred  by  reason  of  any  delay  in  the  payment  to 
the  city  must  be  considered  as  the  result  of  the  lessor's  own  fault  or 
negligence  and  are  not  to  be  included  in  the  amount  he  may  recover, 


810 


Goode  V.  Ruehle,  23  Mich.  30.  ^"  Sargent  v.  Pray,  117  Mass.  267. 


CHAPTEE  VI. 

ASSIGNMENT   OF   LEASES. 

1.  By  Lessor,  §§  421-430.  I  4.  Conditions     against    Assignment 

2.  By  Lessee,  §§  431-446.  and  Subletting,  §§  464-473. 

3.  Rights  and  Liabilities  of  Parties, 

§§  447-463.  ' 

I.     By  Lessor. 

§  421.  According  to  the  modern  rule  the  power  of  a  lessor  is  ample 
to  transfer  either  the  entire  reversion  or  his  interest  under  the  lease, 

and  such  transfer  is  effective  to  vest  in  the  transferee  the  right  to  all 
rent  reserved  in  the  lease,  without  any  further  action  on  the  part  of 
the  tenant.  "At  common  law,  reversions  and  remainders,  lying  in 
grant  and  not  being  capable  of  being  perfected  by  livery,  as  in  the 
case  of  the  grant  of  the  freehold,  or  by  entry,  in  case  of  the  grant  of 
a  leasehold  interest,  required  for  many  purposes  an  attornment  of 
the  tenant  of  the  particular  preceding  estate;  but  where  such  attorn- 
ment was  obtained,  the  reversion  or  remainder,  or  the  estate  carved 
out  of  it,  vested  so  as  to  give  the  grantee  the  right  to  the  rents  and 
services  attached  to  the  reversion,  and,  since  statute  32  Hen.  VIII, 
chap.  34,  to  sue  on  any  covenant  running  with  the  reversion.  The  stat- 
ute of  4  Anne,  chap.  16,  §  9,  now  makes  all  grants  of  manors  or  rents, 
or  of  the  reversion  or  remainder  of  any  messuages  or  lands,  effectual  to 
all  intents  and  purposes,  without  any  attornment  of  the  tenants  of  the 
manors,  or  of  the  lands  out  of  which  the  rent  shall  be  issuing,  or  of 
the  particular  tenants  upon  whose  estates  any  such  reversions  or  re- 
mainders shall  and  may  be  expected  or  depending,  as  if  their  attorn- 
ment had  been  had  and  made."^ 

The  rule  introduced  into  the  English  law  by  the  statutes  of  32 
Hen.  VIII,  chap.  34,  and  of  4  Anne,  chap.  16,  §  9,  by  which  grants  of 
reversions  are  made  effectual  without  attornment,  so  that  an  assignee 
can  maintain  an  action  for  rent,  must  be  regarded  as  adopted  in  many 
states  of  this  country ;  it  follows  that  the  ancient  common  law  require- 

*  Doe  V.  Brown,  2  E.  &  B.  331,  347,  75  E.  C.  L.  331,  per  Lord  Campbell, 
C.  J. 

471 


§    421]  ASSIGXilEXT  OF  LEASES.  472 

ment  of  attornment,  being  iinsuited  to  our  conditions,  has  never 
been  a  part  of  the  law  of  this  country.-  After  a  lessor  has  sold  his 
reversion,  the  purchaser  can  recover  the  rent  reserved  although  the 
tenant  has  not  attorned.  The  conclusion  in  an}'  particular  jurisdic- 
tion that  attornment  is  not  necessary  may  rest  upon  one  of  three 
grounds.  First,  that  the  early  English  acts  dispensing  with  the 
necessity  may  have  been  expressly  reenaeted;  second,  it  may  be  held 
that  those  early  statutes  became  a  part  of  the  great  body  of  English 
common  law  which  was  adopted  in  this  country  upon  the  settlement 
of  the  English  colonists;  third,  it  has  been  held  that  the  common 
law  rule  requiring  attornment  was  inapplicable  to  conditions  ex- 
isting in  this  country  and  never  became  a  part  of  our  law.  In  sup- 
port of  the  third  view  it  has  been  said  that  the  "doctrine  of  attorn- 
ment grew  out  of  the  peculiar  relations  existing  between  the  landlord 
and  his  tenant  under  the  feudal  law.  The  landlord  could  not  alienate 
the  estate  without  the  consent  of  his  tenant.  This  consent  was  called 
an  attornment.  It  was  founded  upon  a  state  of  society  which  cer- 
tainly never  had  any  existence  in  Michigan.  The  peculiar  reasons 
and  relations  out  of  which  the  doctrine  sprung  never  having  had  any 
existence  here,  why  should  the  rule  itself?  Wliere  the  reasons  from 
whence  a  rule  arose  cease  to  exist,  the  rule  should  cease  also.  The 
doctrine  of  attornment  is  inconsistent  with  our  laws,  customs  and 
institutions."^ 

^^^lere  a  lease  is  made  at  common  law,  the  tenancy  is  not  complete 
until  the  lessee  has  entered  upon  the  land  demised.  The  lease  itself 
is  regarded,  not  as  a  conveyance,  but  merely  as  a  contract  for  the 
possession  of  the  land,  and,  therefore,  before  entry,  the  lessee  has 
no   interest  or   estate   in  the   land,   but   only   a   right  to  have  the 

-American  &c.   Co.  v.  Turner,  95  71    Vt.    430,   46   Atl.    63;    Farley   v. 

Ala.  272,  11  So.  211;  Otis  v.  McMil-  Thompson,  15  Mass.  18,  26;   Burden 

Ian,  70  Ala.  46,  52;   English  v.  Key,  v.  Thayer,  3  Mete.   (Mass.)    76;   Ca- 

39  Ala.  113,  116;  King  v.  Housatonic  vis  v.  McClary,  5  N.  H.  529;  Pender- 

R.    Co.,    45   Conn.    226;    Baldwin    v.  gast  v.  Young,  21  N.  H.  234.     In  the 

"Walker,  21  Conn.  168;  Funk  v.  Kin-  latter   case   it   is    said:     ".    .    .   the 

caid,  5  Md.  404;    Lindley  v.  Dakin,  whole  doctrine  of  attornment  grew 

13    Ind.   388;    Kellum   v.   Berkshire  out   of   the   peculiar   policy   of   the 

L.  Ins.  Co.,  101  Ind.  455;  McCardell  feudal    law    and    never    could    have 

V.   Williams,    19   R.    I.    701,    36    Atl.  been  consistent  in  the  spirit  of  our 

719;     Hendrickson     v.     Beeson,     21  government    and     political     institu- 

Neb.  61;    Jones  v.  Rigby,  41   Minn,  tions."   Per  Perley,  J.,  p.  236. 

530,  43  N.  W.  390;   Tilford  v.  Flem-  =  Perrin  v.   Lepper,  34   Mich.   292, 

ing,  64  Pa.  St.  300;  Pelton  v.  Place,  per  Marston,  J. 


473  BY  LESSOR.  [§  422 

land  for  the  term  of  the  lease,  called  in  law  an  interesse  termini.^ 
It  follows  that  if  at  the  making  of  the  lease  the  land  demised  be  in 
the  possession  of  a  tenant  under  a  prior  letting,  so  that  no  entry 
upon  it  can  lawfully  be  made  by  the  lessee,  the  lessee  can  acquire 
no  estate  in  the  land  during  the  continuance  of  the  prior  tenancy, 
unless  he  can  prevail  upon  the  prior  tenant  to  attorn  to  him,  so  that 
the  possession  of  the  prior  tenant  becomes  his  also;  and,  accord- 
ingly, the  rule  in  such  case  is,  that  without  attornment  no  interest 
in  the  reversion  passes  under  the  lease,  but  it  is  good  against  the 
tenant  only  as  a  future  interesse  termini,  to  take  effect  in  possession, 
on  the  determination  of  the  prior  tenancy.^  So  the  lessor  and  not 
the  lessee  would  be  the  proper  one  to  give  the  statutory  notice  to 
quit  to  a  tenant  in  possession.*' 

In  Tennessee  it  seems  that  attornment  is  still  necessary  to  entitle 
an  assignee  of  a  reversion  to  sue  for  rents  in  his  own  name.  In  the 
case  where  this  doctrine  was  laid  down,  the  lessee  had  knowledge  of 
the  sale  and  had  been  directed  by  the  lessor  to  pay  rent  to  the  grantee. 
The  court  held  that  the  grantee  could  have  maintained  an  action 
in  the  name  of  the  lessor  for  his  own  use,  but  before  such  an  action 
could  be  maintained  in  the  grantee's  own  name  on  the  obligation,  the 
lessee  must  make  an  express  promise  to  pay  rent  to  him.^  N'ever- 
theless,  in  that  state,  a  lessor  may  alienate  his  estate  in  the  land, 
and  his  right  in  reversion  to  the  possession,  so  that  his  grantee  would 
have  the  same  right  to  the  possession  after  the  expiration  of  the 
term  that  his  grantor  had.® 

§  422.  In  regard  to  the  effect  of  a  transfer  of  the  reversion  on  the 
rents,  it  is  a  well-settled  principle  of  the  common  law  that  the  grant  of 
the  reversion  of  an  estate  expectant  on  the  determination  of  a  lease 
for  years,  passes  to  the  grantee  the  rents  reserved  in  the  lease  as 
incident  to  the  reversion.''     No  apportionment  would  be  made,  but 

*  Miller  v.  Green,  8  Bing.  92,  104;  '  Marney     v.     Byrd,     11     Humph. 

1    Instit.   46b;    Bacon's  Abridg.   Tit.  (Tenn.)    95. 

Leases  and  Terms  for  Years   (M.).  ^  Marley     v.     Rodgers,     5     Yerg. 

=  Edwards   v.    Wickwar,    L.    R.,    1  (Tenn.)  217. 

Eq.  403,  404;   Doe  v.  Brown,  2  B.  &  "King   v.    Housatonic    R.    Co.,    45 

B.  331,  348,  75  E.  C.  L.  331;    Raw-  Conn.  226;  Foote  v.  Overman,  22  111. 

lyns'  Case,  4  Coke  52d,  53b;  Bacon's  App.  181;  Peck  v.  Northrop,  17  Conn. 

Abridg.  Tit.  Leases  and  Terms  for  217;  Chandler  v.  Pittsburgh  &c.  Co., 

Years  (N.).  20  Ind.  App.  165;  Perrin  v.  Lepper, 

"Comstock  v.  Cavanagh,  17  R.  L  34  Mich.  292;   Hansen  v.  Prince,  45 

233,  21  Atl.  498.  Mich.  519,  8   N.  W.  584;    Kornegay 


§■   422]  ASSIGNMENT  OF  LEASES.  474 

the  monthly,  quarterly,  or  annual  rent  would  follow  the  land  and 
belong  to  the  owner  at  the  time  it  accrues.^"  And  the  rule  is  the 
same  where  the  assignment  of  the  reversion  is  by  mortgage,  instead 
of  being  by  an  absolute  conveyance.^ ^  So  the  purchaser  on  a  fore- 
closure sale  under  a  mortgage  junior  to  a  lease  would  prevail  over 
a  transferee  of  the  lease  from  the  lessor.  As  against  the  rights  of 
the  lessor,  who  is  also  the  mortgagor,  the  right  of  the  mortgagee 
is  complete  at  the  time  of  the  execution  of  the  mortgage,  and  such 
mortgage  being  executed  prior  to  the  assignment  of  the  lease,  it  is 
apparent  that  no  subsequent  assignment  of  the  lease  can  take  away 
any  rights  from  the  mortgagee.^- 

A  transfer  of  a  reversion  is  entirely  unlike  an  assignment  of  a 
chose  in  action,  where  to  perfect  the  transfer  notice  must  be  given 
to  the  debtor.  The  land  is  assigned  and  the  rent  passes  only  as 
an  incident ;  and  notice  of  the  transfer  of  the  land  is  given  the  lessees 
and  everybody  else  by  recording  the  deed.  Moreover,  no  one  but  the 
lessees  can  complain  of  the  want  of  notice,  though  the  lessees  right 
to  notice  is  universally  recognized.  If  the  deed  is  not  recorded  at 
the  time  of  its  delivery,  and  the  lessees  afterwards  pay  the  rent  to 
the  lessor,  without  notice  of  the  assignment,  they  may  well  complain, 
if  sued  for  it  by  the  assignee.^^  If  the  assignee  lies  by  and  permits 
the  tenant  to  pay  rent  to  the  lessor  as  it  falls  due,  he  cannot  force 
the  lessee  to  pay  it  a  second  time.  Such  was  the  rule  under  the  old 
common  law  where  an  attornment  was  necessary."  The  equities 
between  the  parties  are  adjusted,  however,  by  holding  that  the  grantor 

V.  Collier,  65  N.  Car.  69;  Bullard  v.  Page   v.    Culver,   55    Mo.   App.    606, 

Johnson,  65  N.  Car.   436;    Holly  v.  §  667. 

Holly,  94  N.  Car.  670;  Hecht  v.  Dett-  "Kimball  v.  Pike,  18  N.  H.  419; 

man,  56  Iowa  679,  7  N.  W.  495,  10  Fitchburg  &c.    Corp.   v.    Melven,   15 

N.  W.  241;   Abrams  v.  Sheehan,  40'  Mass.    268;     Burden    v.    Thayer,    3 

Md.  446;  Keay  v.  Goodwin,  16  Mass.  Mete.    (Mass.)    76;    Babcock  v.  Ken- 

1;  Beal  v.  Boston  &c.  Co.,  125  Mass.  nedy,  1  Vt.  457;   Moss  v.  Gallimore, 

157,    28    Am.    R.    216;     Burden    v.  1    Doug.    279;    Birch   v.   Wright,    1 

Thayer,  3  Mete.  (Mass.)  76;  Culver-  Term  R.  378,  383;    King  v.  Housa- 

house  v.  Worts,   32   Mo.   App.  419;  tonic  R.  Co.,  45  Conn.  226;   Ameri- 

Vaughn  v.  Locke,  27  Mo.  290;  Kim-  can  &c.  Co.  v.  Turner,  95  Ala.  272, 

ball  v.  Pike,  18  N.  H.  419;  York  v.  11  So.  211;  Clarke  v.  Cobb,  121  Cal. 

Jones,    2    N.    H.    454;    Johnston    v.  595,  54  Pac.  74;    Scheldt  v.  Belz,  4 

Smith,  3  Pen.  &  W.  (Pa.)  496;  Scott  111.  App.  431. 

v.   Lunt,   7    Peb.    (U.   S.)    596;    Co.  i=  Kimball  v.  Pike,  18  N.   H.  419. 

Litt.  151,  152;   2  Bl.  Comm.  176;   4  "Peck  v.  Northrop.  17  Conn.  217; 

Kent  354,  §  667.  Kornegay  v.  Collier,  65  N.  Car.  69. 

"Vaughn  v.   Locke,   27   Mo.   290;  "  Pelton  v.  Place,  71  Vt.  430,  46 

Atl.  63. 


475  BY  LESSOR.  [§•  422 

is  liable  to  the  grantee  for  rents  received  by  him  becoming  due  after 
the  conveyance.^^ 

It  follows  from  the  doctrine  that  rent  is  incident  to  the  reversion, 
that  after  a  grant  of  the  reversion,  the  rent  cannot  be  reached  by 
creditors  of  the  lessor  to  be  applied  upon  his  debts.^®  Furthermore, 
an  agreement  that  an  assignor  shall  receive  a  certain  proportion  of 
a  subsequently  accruing  rent  payment  gives  him  no  title  to  enforce 
such  payment  by  any  action  founded  on  the  lease  itself;  and  tliere- 
fore  the  lessee  could  not  be  garnisheed  by  a  creditor  of  the  lessor.^^ 
After  a  lessor  conveys  without  reservation  of  rent,  he  cannot  recover 
rent  subsequently  accruing,  unless  it  has  been  assigned  to  him  by 
the  grantee.  ^^ 

The  general  rule  that  rent  follows  the  reversion  is  applicable  where 
a  person  grants  a  lease  of  lands  and  on  his  death  conveys  the  land 
by  will.  In  such  case  it  is  settled  that  rents  coming  due  after  the 
death  of  the  testator,  follow  the  reversion  to  the  devisee.^'*  A  sale 
of  a  reversionary  interest  in  land  under  execution  carries  with  it  all 
the  rent  falling  due  after  the  transfer.^"  For,  in  this  respect,  such 
a  forced  sale  has  the  same  effect  in  transferring  the  reversionary 
interest  that  a  voluntary  deed  of  the  premises  by  the  lessor  would 
have.^^  Eent  follows  the  reversion  after  a  sale  by  an  administrator 
authorized  by  statute  after  the  death  of  the  lessor,* ^  as  it  has  been 
ruled  that  a  sale  by  an  administrator  under  a  statute  is  equivalent 
to  a  sale  by  the  heir,  the  administrator  being  made  by  statute,  in 
substance,  the  attorney  in  fact  of  the  heir  to  make  such  sale.-^  But 
this  rule  has  its  limitations,  and  the  tenant  of  an  heir  is  not  tenant 
to  the  purchaser  of  the  property  at  a  sale  ordered  by  the  surrogate 
for  the  purpose  of  realizing  assets  to  pay  off  the  ancestor's  debts;-* 
and  for  heirs  to  assent  to  the  collection  of  rent  by  the  administrator 
of  the  former  lessor  does  not  make  the  administrator  landlord  to  the 
tenant  in  possession.^^     Where  an  owner  of  gas  land  executes  a  gas 

"Van   Wagner  v.   Van   Nostrand,  ^Johnson   v.    Doss,    1    Tex.    App. 

19  Iowa  422.  Civ.  Cas.,  §  1076. 

"Kornegay  v.  Collier,  65  N.  Car.  '^  Lancashire  v.  Mason,  75  N.  Car. 

69.  455. 

"Hansen  v.  Prince,  45  Mich.  519,  -Page  v.  Culver,  55  Mo.  App.  606. 

8  N.  W.  584.  ='Selb  v.   Montague,  102   111.  446; 

"West    Shore    Mills    Co.    v.    Ed-  Foote  v.  Overman,  22  111.  App.  181. 

wards,  24  Ore.  475,  33  Pac.  987.  ^*  Jackson   v.   Robinson,    4   Wend. 

"Rogers  v.  McKenzie,  65  N.  Car.  (N.  Y.)   436. 

218;   Mixon  v.  Coffield,  2  Ired.    (N.  "'Stewart  v.  Smiley,  46  Ark.  373. 
Car.)  301;  Holly  v.  Holly,  94  N.  Car. 
670. 


§§'   423,   424]  ASSIGXMEXT   OF   LEASES.  47G 

lease  and  afterwards  conveys  the  land,  the  grantees  are  entitled  to 
rents  maturing  after  the  transfer,  a  gas  lease  being  more  like  a  lease 
for  tillage  than  like  a  mining  lease.^^ 

§  423.  In  Illinois  the  statute  of  Anne  dispensing  with  attornment 
was  not  regarded  as  in  force  in  1871,  and  hence,  it  was  decided  in  that 
year  that  an  attornment  by  a  tenant  was  necessary  to  entitle  an  assignee 
of  rent  to  sue  in  his  own  name.-'^  But  the  rule  of  this  case  has  since 
been  abrogated  by  statute,  which  dispensed  with  the  necessity  for  at- 
tornment.-^ However,  in  a  case  where  the  Court  of  Appeals  held  that 
an  assignment  of  rent. would  prevail  over  a  garnishment  of  the  lessee 
by  a  creditor  of  the  lessor,  the  court  said  that  the  right  of  the  as- 
signee was  merely  an  equitable  right.^"  And  this  has  been  subse- 
quently cited  as  an  authority  for  the  proposition  that  an  assignee 
of  all  the  lessor's  right,  title,  and  interest  in  a  lease  gives  the  as- 
signee no  right  of  action  at  law.^*^  The  correct  rule  was  declared 
in  a  later  case,  decided  by  the  same  court,  that  an  assignment  by  a 
lessor  of  all  his  title  and  interest  in  a  lease,  with  directions  that 
all  rents  thereunder  be  paid  to  the  assignee,  authorizes  the  assignee 
to  sue  for  the  rents  to  accrue  and  no  attornment  by  the  tenant  is 
necessary.^^ 

§  424,  A  reversion,  not  being  an  estate  in  possession,  would  lie  in 
grant  and  the  ordinary  mode  of  transfer  would  be  by  deed,  signed, 
sealed  and  delivered.  Where  the  lessor's  interest  was  evidenced  by  a 
bond  for  title  which  was  delivered  with  the  indorsement  "For  value 
received,  I  hereby  assign  ...  all  my  right,  title,  and  interest 
to  the  real  estate  described  in  the  within  bond,  and  held  by  me  by 
virtue  of  said  bond,"  an  accompanying  delivery  of  the  lease  was  held  to 
constitute  a  valid  transfer  and  to  invest  the  transferee  with  the  right 
to  recover  rent.  Such  assignment  was  more  than  a  mere  transfer 
of  the  writing  or  bond.   It  invested  the  transferree  with  all  the  right 

="  Chandler    v.     Pittsburgh    Glass  the    assignee    could   sue   at   law   to 

Co.,  20  Ind.  App.  165,  50  N.  E.  400.  recover  subsequently  accruing  rent. 

=' Fisher  v.  Deering,  60  111.  114,  Fisher  v.  Deering,  60  111.  114,  over- 

=' Rowland  v.  White,  48   111.  App.  ruling  Chapman  v.  McGrew,  20  111. 

236;  R.  S.,  eh.  80,  §  14.  101,  on  this  point. 

^^Buxbaum    v.    Dunham,    51    111.  =°  Hefling    v.    Van    Zandt,    60    111. 

App.    240,      Even    under    the    early  App.  662. 

doctrine    in    this    state,    where    the  ''  Barnes   v.    Northern    Trust  Co., 

tenant   attorned    to    an    assignee   of  66  111.  App.  282. 
the  reversion  by  paying  rent  to  him. 


477  BY  LESSOR.  [§   424 

or  interest  of  the  obligee  by  virtue  of  such  bond.^-  A  lease  for  a 
year  in  writing,  the  rent  under  which  was  secured  by  rent  notes, 
was  delivered  by  the  lessor  to  another  and  the  rent  notes  were  as- 
signed to  him,  with  the  intention  of  assigning  the  lease,  but  no  writ- 
ten assignment  was  executed.  The  absence  of  a  written  assignment 
was  not  fatal,  for  it  was  held  to  be  well  settled  that  such  a  lease 
could  be  assigned  by  parol.  The  intention  of  the  parties  to  assign 
was  clear,  so  there  was  not  simply  an  assignment  of  the  rent  but 
an  assignment  of  the  lease  as  well.^^  Where  an  assignment  is  only 
of  the  term,  the  rights  of  the  assignee  of  the  lessor  do  not  extend 
beyond  the  term  and,  if  the  reversion  is  not  assigned,  the  assignee 
of  the  lessor  has  no  right  to  a  return  of  the  premises*  The  right 
of  action  for  breach  of  the  covenant  to  return  in  good  condition 
would  in  that  case  remain  in  tlie  lessor,  the  owner  of  the  reversion.^* 
A  covenant  to  surrender  up  premises  in  good  repair  is  not  broken 
until  the  term  ends,  and  therefore  no  one  but  the  owner  of  the  re- 
version can  prosecute  for  a  breach  of  that  covenant.^^  Where  a  build- 
ing, two  rooms  of  which  were  leased  for  a  long  term,  was  leased 
entire  to  another  for  a  short  term,  this  did  not  take  effect  as  an  as- 
signment of  the  existing  lease  but  was  merely  a  transfer  of  the  right 
to  collect  rents.  An  assignment  of  rents  is  neither,  in  law  or  equity, 
an  assignment  of  the  lease  which  secures  the  rents.^*'  So  the  second 
lessee  could  not  bring  an  action  for  breach  of  a  covenant  of  restrictive 
use  contained  in  the  first  lease.  Nothing  is  more  clear  than  that 
one  man  cannot  complain  of  an  injury  affecting  the  property  of 
another  person.^^ 

The  interest  of  the  landlord  may  also  pass  by  descent;  if  the 
landlord  die  before  the  expiration  of  the  term  for  which  the  land 
is  leased,  the  tenant  thereupon  becomes  the  tenant  of  the  heir  to 
whom  the  land  descends;  and  the  relation  between  the  tenant  and 
the  heir,  in  such  case,  will  be  in  all  respects  the  same  as  previously 
existed  between  the  tenant  and  the  ancestor.  The  contract  of  lease 
will  be  no  less  obligatory,  as  between  the  tenant  and  the  heir,  than 
between  the  original  parties ;  and  the  tenant  can  no  more  controvert 
the  title  of  the  heir  than  he  could  that  of  the  ancestor.^^ 

''  Van   Driel   v.   Rosierz,   26    Iowa  ^^  White  v.  Kane,  53  Mo.  App.  300. 

575.  ^'  Allen  v.  Wooley.  1  Blackf.  (Ind.) 

'^Oswald    v.   Mollet,    29    111.   App.  148;     Attorney-General     v.     United 

449.  Kingdom  &c.,  30  Beav.  287. 

'*  Bordereaux    t.    Walker,    85    111.  ^*  Blantre  v.  Whitaker,  11  Humph. 

App.  86.  (Tenn.)   313. 

==Demarest  v.  Willard,  8  Cow.  (N. 
Y.)  206. 


I 


§§    425,   426]  ASSIGXMEXT    OF    LEASES.  478 

A  lease  for  a  term  of  years,  conditioned  on  the  payment  of  an 
annual  rent,  with  a  perpetual  right  of  renewal,  does  not  divest  the 
lessor  of  his  fee  in  the  premises,  so  that  a  conveyance  of  the  leased 
premises  by  the  lessor  makes  the  grantee  the  landlord  of  the  lessee, 
with  the  right  of  possession  upon  a  forfeiture  for  breach  of  the  con- 
dition of  the  lease.^^ 

WTiere  a  lease  has  been  accepted  from  two  owners  as  joint  owners, 
one  of  them  cannot  assign  the  entire  lease,  even  though  they  be  hus- 
band and  wife,  for  the  tenant  could  not  inquire  into  their  individual 
interests.*" 

§  425.     Rent  may  be  excepted  in  a  grant  of  a  reversion  by  a  lessor, 

for  rent  is  not  necessarily  an  incident  of  the  reversion  so  that  it  can- 
not by  the  acts  or  agreements  of  the  parties  be  separated  from  it. 
It  is  true  that  in  a  general  grant  of  a  reversion,  the  rent  will  pass 
as  incident  to  it.  But  the  reversion  may  be  granted  and  the  rent 
reserved,  or  the  rent  may  be  assigned,  reserving  the  reversion,  if 
such  is  the  intention  of  the  parties  as  expressed  by  the  words  they 
use.  Lord  Coke  says  that  fealty  is  an  incident  inseparably  annexed 
to  the  reversion,  and  the  donor  or  lessor -jcannoi  grant  the  reversion 
and  save  to  himself  the  fealty;  but  the  rent  he  may  except,  because 
the  rent,  though  it  be  an  incident,  yet  is  not  inseparably  incident.*^ 
Thus  a  lessor  could  grant  his  reversion,  or  surrender  it  to  the  lessee, 
and  reserve  the  rent  accruing  on  under-leases,  which  had  in  turn 
been  assigned  to  him.  In  such  a  case  the  lessor's  relations  to  the  sub- 
lessees is  not  changed  by  the  grant  or  surrender  of  the  reversion, 
and  he  can  recover  rent  of  them  on  the  covenants  of  their  leases. 
If  it  be  expressly  agreed  that  the  surrender  shall  not  invalidate  the 
assignment  of  the  sub-leases,  the  two  transactions  might  be  made 
simultaneously.*^ 

§  426.  Attornment  has  been  defined  to  be  the  acknowledgment  by 
a  tenant  of  a  new  landlord  on  the  alienation  of  land,  and  an  agree- 
ment to  become  tenant  to  the  purchaser.*^  One  of  the  commonest 
ways  in  which  an  attornment  is  effected  is  by  the  payment  of  rent 
to  the  grantee  of  the  reversion.     Thus,  where  the  tenant  of  a  de- 

'"  Page  V.  Esty,  54  Me.  319.  *=  Beal  v.  Boston  &c.  Co.,  125  Mass. 

^oHecht  V.  Ferris,  45  Mich.  376,  8  157,  28  Am.  R.  216. 

N.  W.  82.  "Whart.    Law    Die.    66;    1    Bouv. 

"Co.    Lit.    143a,    151b;    3    Cruise  Law  Die.  151;  Lindley  v.  Dakin,  13 

Dig.    337;    Demarest   v.    Willard,    8  Ind.  388. 
Cow.   (N.  Y.)   206. 


I 


479  BY  LESSOR.  [§   437 

ceased  lessor  paid  the  pro  rata  share  of  rent  to  one  of  his  heirs,  the 
relation  of  landlord  and  tenant  was  established  between  the  parties.** 
A  payment  of  rent  made  on  a  threat  of  suit  by  an  assignee  of  the 
reversion  must  be  regarded  as  an  attornment  to  him,  though  the 
payment  was  expressed  to  be  merely  for  the  use  and  occupation  of 
the  premises,  and  was  accompanied  by  a  protest,  and  denial  of  the 
assignee's  right  to  receive  the  money,  and  also  a  declaration  that 
the  tenant  did  not  recognize  the  relation  of  landlord  and  tenant 
as  existing  between  him  and  the  assignee.  In  spite  of  all  objections 
the  payment  of  rent  was  held  to  effect  an  attornment,  according  to 
the  general  rule  in  such  cases.*^  Paying  rent  to  the  grantor  as 
agent  for  the  grantee,  after  notice  of  the  transfer  and  the  capacity 
in  which  the  grantor  acts,  has  also  been  held  to  constitute  an  at- 
tornment to  the  grantee,  although  he  was  not  dealt  with  in  person. 
The  ordinary  rules  of  principal  and  agent  would  apply.*'' 

The  endeavor  of  a  lessee  to  persuade  an  assignee  of  the  lease  to 
accept  a  grain  rent,  coupled  with  the  remark  that  they  were  all  right, 
amounts  to  an  attornment,  as  any  act  by  which  a  party  recognizes 
a  change  in  the  person  to  whom  rent  is  due  is  an  attornment.*^  At- 
tornment is  not  the  creation  or  initiation  of  a  new  lease,  commencing 
on  the  day  of  attornment,  but  is  merely  the  assent  of  the  tenant  to 
his  landlord's  alienation  and  the  acceptance  of  the  alienee  as  the 
new  landlord.*® 

§  427.  Covenants  in  assignment  to  deliver  possession. — Occupancy 
by  a  tenant  of  property  sold,  where  that  fact  and  the  title  of  the  ten- 
ant are  known  at  the  time  to  a  purchaser,  is  not  a  breach  of  the 
covenant  of  right  of  possession;  and  if  no  special  contract  is  made, 
the  occupant  becomes  tenant  to  the  purchaser.  The  possession  of 
the  tenant  is  the  possession  of  the  landlord.*^  At  the  common  law, 
after  attornment,  the  occupancy  of  a  tenant  could  not  be  deemed 
a  breach  of  any  covenant  in  the  deed.  The  reason  is  obvious.  The 
tenant  was  thereafter  the  tenant  of  the  purchaser.  In  contempla- 
tion of  law  the  tenant  received  his  possession  from  such  purchaser 
and  at  the  expiration  of  his  term  was  bound  to  surrender  it  to  him. 
The  statute  doing  away  with  attornment  now  accomplishes  the  same 

**  Leitch  V.  Boyington,  84  111.  179.  «  Tilford   v.   Fleming,    64    Pa.    St. 

"McCardell  v.  Williams,  19  R.  I.  300. 

701.  *'Kellum  v.  Berkshire  L.  Ins.  Co., 

'"Knorr  v.  Raymond,  73  Ga.  749.  101   Ind.  455;    Lindley  v.  Dakin,  13 

*' Oswald    V.    Mollet,    29    111.    App.  Ind.  388;    Page  v.  Lashley,   15   Ind. 

449;  Hayes  v.  Lawyer,  83  111.  182.  152. 


§'   427]  ASSIGNMENT   OF  LEASES,  480 

purpose;  it  transfers  the  possession.  It  enables  the  purchaser  to 
collect  the  rent,  to  enforce  all  other  obligations  of  the  tenant  and 
compels  him,  at  the  expiration  of  the  term,  to  yield  the  possession 
to  the  purchaser.  It  establishes  the  relation  of  landlord  and  tenant 
between  the  parties  and  entitles  the  purchaser  to  all  the  remedies 
applicable  to  such  relation.  This  being  so,  it  must  follow  that  the 
mere  occupancy  of  the  vendor's  tenants  cannot  operate  as  a  breach 
of  the  covenants  in  the  deed.°° 

Where  a  reversionary  interest  is  assigned,  it  is  not  necessary  that 
possession  by  symbol,  as  by  delivery  of  keys,  or  possession  by  actual 
occupancy  should  exist  in  all  cases.  Where  vendee  is  entitled  to 
possession  and  is  accepted  as  landlord  by  the  tenant  of  a  vendor,  and 
the  vendor  assents,  that  is  sufficient  to  constitute  a  transfer  of  posses- 
sion to  the  grantee. ^^  "A  sale  by  a  lessor  of  real  estate,  during  an 
unexpired  leasehold  term,  under  which  a  tenant  is  holding,  do(?s  not 
of  itself  abrogate  the  lease,  determine  +he  leasehold  estate,  or  authorize 
the  landlord  or  tenant  to  treat  the  lease  as  at  an  end.  Its  only  effect 
is  to  substitute  the  vendee  of  the  reversion  to  all  the  rights  of  the 
original  lessor.  .  .  .  The  vendee  then  becomes  the  landlord  by 
operation  of  law;  .  .  .  and  the  tenant  becomes  the  tenant  of 
the  vendee  of  the  reversion."^ ^  Ordinarily  a  grantee  accepts  a  ten- 
ant in  possession  as  his  own,  and  is  in  possession  through  such  ten- 
ant, but  this  is  not  so  where  the  grantor  agrees  to  give  the  grantee 
immediate  possession  by  means  of  an  agreement  with  the  tenant.^^ 
A  tenant  cannot  attorn  to  a  person  other  than  his  landlord.  This 
doctrine  is  unquestionably  applicable  where  the  rights  of  the  landlord 
would  be  injuriously  affected;  but  when  he  contracts  to  sell  rented 
premises  to  another  and  by  express  agreement  between  himself  and 
his  vendee,  which  is  assented  to  by  the  tenant,  the  vendee  is  to  have 
immediate  possession  of  the  premises  and  the  tenant  is  thereafter 
to  hold  under  him  as  landlord,  there  is  an  end  to  the  contract  of 
rental  between  the  vendor  and  his  tenant,  and  it  certainly  would  not 
do  to  hold  that  these  three  persons  were  not  all  bound  by  the  ex- 
press terms  of  their  agreement,  or  that  their  privies  were  not  con- 
cluded thereby.^*  Even  though  a  lessor's  violation  of  an  agreement 
to  give  the  lessee  a  preference  in  case  of  sale  gave  the  lessee  a  right 
to  abandon  the  premises,  as  long  as  he  did  continue  in  the  possession 

™  Kellum  V.  Berkshire  L.  Ins.  Co.,  ^'  Williams    v.    Frybarger,    9    Ind. 

101   Ind.   455.  App.  558,  37  N.  E.  302. 

=1  McLean  v.  Spratt,  19  Fla.  97.  "Collins   v.   Moore,    115   Ga.   327, 

"  Otis  V.  McMillan,  70  Ala.  46,  53,  41  S.  E.  609. 
per  Stone,  J. 


481 


BY  LESSOR. 


[§  438 


of  the  land,  he  continued  as  the  tenant  to  the  grantees. ^^  How- 
ever, the  sale  of  leased  lands  passes  only  the  right  to  the  land  sub- 
ject to  the  lease,  if  the  grantee  has  notice  of  it,^®  and  actual  posses- 
sion by  the  tenant  at  the  time  of  the  sale  charges  the  purchaser 
with  notice  of  his  rights. ^^ 

§  428.  A  conveyance  of  the  reversion  in  fee  to  a  lessee  or  his  as- 
signee holding  an  outstanding  lease  causes  the  lease  to  merge  in  the 
freehold  estate.^ ^  A  right  of  redemption  in  the  lessor,  as  where  the 
reversion  passes  to  the  lessee  as  purchaser  under  a  power  of  sale  in 
a  mortgage  junior  to  the  lease,  would  not  preclude  the  operation 
of  this  rule;  but  the  lease  would  be  merged  in  the  larger  estate,  and 
in  case  the  mortgagor  exercised  his  right  to  redeem,  he  would  obtain 
an  immediate  right  to  possession.^^  In  case  the  lessor  mortgages 
the  demised  estate  to  his  lessee,  the  mortgage  will  be  supposed  to  have 
been  first  executed,  and  will  be  no  bar  to  the  recovery  of  rent  under 
the  lease.  But  after  the  parties  fail  to  demand  or  pay  rent,  or  inter- 
est, and  the  lessee  is  suffered  to  enter  for  the  purpose  of  foreclosing 
his  mortgage,  there  is  sufficient  evidence  of  the  lessee's  election  to 
hold  under  the  mortgage  and  of  the  lessor's  assent  that  he  should 
so  hold.  During  the  suspension  of  the  lease,  the  lessee  will  be  ac- 
countable for  the  profits  as  mortgagee.""  Nevertheless,  a  lessee  tak- 
ing a  mortgage  of  the  same  lands  from  his  lessor  wall,  in  the  first 
instance,  be  considered  as  holding  under  the  lease,  until  he  has  made 


="  Davidson  v.  Wallingford,  88 
Tex.  619,  32  S.  W.  1030;  Heflin  v. 
Burns,  70  Tex.  347,  8  S.  W.  48; 
Hearne  v.  Lewis,  78  Tex.  276,  14 
S.  W.  572;  Breeding  v.  Taylor,  13 
B.  Mon.  (Ky.)  477. 

""  O'Neil  V.  Davis,  1  Tex.  App.  Civ. 
Cas.,   §   416. 

"Friedlander  v.  Ryder,  30  Neb. 
783,  74  N.  W.  83;  O'Neil  v.  Davis, 
1  Tex.  App.  Civ.  Cas.,  §  416. 

^' Liebeschutz  v.  Moore,  70  Ind. 
142,  36  Am.  R.  182;  McMahan  v. 
Jacoway,  105  Ala.  585,  18  So.  48; 
Otis  v.  McMillan,  70  Ala.  46;  Car- 
roll V.  Ballance,  26  111.  9,  19;  Wabl 
V.  Barroll,  8  Gill  (Md.)  288;  Gunn 
V.  Sinclair,  52  Mo.  327;   Zeysing  v. 


Welbourn,  42  Mo.  App.  352;  Beck- 
with  V.  Howard,  6  R.  1.  1;  Webb  v. 
Russell,  3  Term  R.  393;  Hughes  v. 
Robotham,  1  Cro.  Eliz.  302;  1  Cruise 
Dig.  239,  3  Brest.  Conv.  201.  "Where 
a  term  for  years  and  the  immediate 
reversion  meet  in  one  and  the  same 
person,  in  his  own  right,  either  by 
his  own  act  or  by  act  of  the  law, 
so  that  he  has  full  power  of  aliena- 
tion of  both  estates,  they  will 
merge."  Wash.  Real  Prop.  (6th  ed.), 
§  740,  citing  Burton  Real  Prop., 
§§  897,  899;  1  Cruise  Dig.  239;  3 
Prest.  Conv.  201. 
'=^Otis  V.  McMillan,  70  Ala.  46. 
™Newall  V.  Wright,  3  Mass.  138, 
3  Am.  Dec.  98. 


Jones  L.  &  T.— 31 


§    428]  ASSIGNMENT   OF   LEASES.  4S'3 

his  election  to  hold  under  his  subsequent  mortgage,  or  done  some 
act  equivalent  and  given  notice  of  such  election  to  the  lessor.*'^ 

In  order  for  a  merger  to  take  place,  however,  legal  title,  as  distin- 
guished from  a  mere  equitable  interest,  must  be  conveyed  to  the  ten- 
ant. A  bond  given  by  a  lessor,  in  which  he  engaged  to  give  a  deed 
of  the  premises  to  the  lessee,  and  "stop  charging  him  rent,"  does  not 
change  the  nature  or  incidents  of  the  previous  tenancy  under  an  oral 
demise.^^ 

If  the  deed  to  the  lessee  is  expressly  made  subject  to  the  lease, 
the  lessee  must  hold  under  the  lease  and  pay  rent  as  long  as  it  con- 
tinues, and  he  cannot  take  under  the  deed  till  the  end  of  the  terra. 
Such  a  deed,  by  its  terms,  postpones  the  rights  thereunder  to  the 
lease  already  taken.  The  right  under  the  deed  is  subject  to  the  lease, 
and  if  the  lease  is  to  continue  in  force  for  three  years  the  grantee 
can  get  nothing  by  the  deed  until  then.  He  can  take  under  a  deed, 
only  in  accordance  with  its  terms. *'^  If  a  tenant  purchases  from  his 
landlord,  or  at  a  sheriff's  sale,  the  tenancy  is  thereby  extinguished.*'* 
Such  a  sale  entitles  the  purchaser  to  the  rent  a'ccruing  from  the  day 
of  the  sale  to  the  expiration  of  the  tenancy.*'^  But  it  is  competent  to 
have  an  understanding  or  agreement  that  rent  for  the  current  year 
shall  be  paid  to  the  representatives  of  the  lessor,  and  it  would  be 
binding  and  enforceable  when  bids  at  the  execution  sale  were  guided 
by  this  understanding.®*' 

It  has  been  held  that  for  a  lessee  or  his  assignee  to  become  the 
owner  in  fee  of  an  undivided  half  of  the  estate  of  which  tlie  leased 
premises  constituted  a  part  does  not  extinguish  the  lease.  There 
is  no  union  of  the  greater  and  the  less  estate,  in  the  same  person, 
and  in  the  same  right,  which  is  necessary  to  create  a  merger."^  The 
case  relied  upon  as  authority  for  this  decision  was  one  where  there  ,j 
was  a  joint  lease  to  two  for  their  joint  lives  and  to  the  survivor  for 
his  life  and  the  entire  reversion  was  conveyed  to  one  of  the  life  ten-;v, 
ants.     There  was  no  merger  because  of  the  intervening  estate  in  sur-' 

"Newall  V.  Wright,  3  Mass.   138,         «*  Higgins  v.  Turner.  61  Mo.  249;,. 

3  Am.  Dec.  98;   Wood  v.  Felton,   9  Gunn  v.  Sinclair,  52  Mo.  327. 
Pick.   (Mass.)   171.  ^Stevenson    v.    Hancock,    72    Mo. 

"Rooney    v.    Gillespie,     6     Allen  612;  Winfrey  v.  Work,  75  Mo.  55. 
(Mass.)    74;    Benedict  v.  Morse,  10        "''Aull  Sav.  Bank  v.  Aull,  80  Mo. 

Mete.   (Mass.)   223;   Howard  v.  Mer-  199;    Zeysing  v.   Welbourn,   42   Mo. 

riam,  5  Gush.  (Mass.)  563;  Furlong  App.  352. 
V.  Leary,  8  Gush.    (Mass.)    409.  ^'Martin  v.   Tobin,   123   Mass.  85, 

"Wilbur  V.   Nichols,   61   Vt.   432,  citing  Johnson  v.  Johnson,  7  Allen 

18  Atl.  154.  (Mass.)    196. 


483  BY  LESSOR.  [§   429 

vivorship  in  the  other  tenant.''^  This  is  essentially  different  from 
a  case  where  a  single  lessee  receives  a  conveyance  of  an  undivided 
interest  in  the  reversion,  and  on  the  latter  state  of  facts  there  would 
be  a  merger,  pro  tanto,  of  the  term,  and  the  covenants  to  pay  rent, 
taxes,  and  assessments  are  thereby  extinguished  as  to  the  part  pur- 
chased by  the  lessee.*^^  In  case  of  a  sale  on  partition,  the  purchaser 
would  have  the  same  right  to  occupy  and  enjoy  the  premises,  in  pro- 
portion to  his  interest  in  the  present  estate,  as  the  lessee  himself. 
If  partition  is  awarded  and  the  premises  are  to  be  sold,  of  course 
they  must  be  sold  as  an  entirety  subject  to  the  lease.  If  after  the 
sale  the  lessee  assumed  the  exclusive  possession,  he  would  be  bound 
to  account  to  the  purchaser  for  the  value  of  the  portion  of  the 
premises  not  covered  by  the  lease.^° 

A  covenant  to  convey  to  a  lessee,  though  contained  in  the  instru- 
ment of  demise,  does  not  depend  for  its  validity  on  the  continued 
existence  of  an  outstanding  term.  The  conveyance  may  be  demanded 
at  any  time  and  the  existence  or  non-existence  of  the  lease  at  the 
time  when  the  demand  is  made  is  immaterial  to  the  right  of  the 
parties.^^  Where  a  lease  contained  a  clause  authorizing  the  lessor 
to  terminate  the  lease  by  a  sale  of  the  premises,  and  providing  for 
payment  of  a  bonus  to  the  lessee  in  that  event,  a  sale  to  tlie  lessee 
himself  would  not  entitle  him  to  recover  the  bonus,  as  that  was  not 
within  the  fair  intent  of  the  parties.'- 

§  429.  Effect  of  sub-tenancy  on  merger. — A  sub-tenant  who  accepts 
an  assignment  of  the  original  lease  becomes  the  owner  of  the  re- 
versionary title  to  the  sub-leased  premises  and  therefore  by  operation 
of  law  the  sub-lease  and  all  the  covenants  therein  contained  are  merged 
and  extinguished  and  the  sub-leased  lot  is  held  in  the  same  manner 
and  upon  the  same  terms  and  conditions  as  if  no  sub-lease  had  ever 
been  made.''^^  By  the  sub-tenant's  purchase  of  the  entire  leasehold 
interest,  the  relation  of  landlord  and  tenant  under  a  rental  contract 
for  one  year  is  merged  into,  that  of  vendor  and  vendee.     Consequently 

•'^  Johnson    v.     Johnson,    7    Allen  "Prout  v.  Roby,  15  Wall.   (U.  S.) 

(Mass.)    196.  471,  21  L.  ed.  58. 

''^  Lansing  v.  Pine,  4  Paige  (N.  Y.)  ^*  Seaman  v.   Civill,  45   Barb.    (N. 

639;     Hill    v.    Reno,    112    111.    154;  Y.)    267,  31  How.  Pr.  52. 

Shillito  V.  Pullan,  2  Disney   (Ohio)  ''^  Wahl   v.   Barroll,   8   Gill    (Md.) 

588.  288;    Webb   v.    Russell,    3    Term    R. 

'"Hill  V.  Reno,  112  111.  154.  393;    Hughes   v.    Robotham,    1    Cro 

Eliz.  302. 


§    429]  ASSIGNMENT   OF  LEASES.  48-i 

a  covenant  to  repair  in  the  rental  contract  would  not  be  binding  on 
the  assignor  after  the  assignment.'^* 

A  surrender  by  a  lessee  to  his  lessor  of  the  outstanding  term  will 
not  operate  to  destroy  the  interests  of  undertenants.  The  interests 
and  terms  of  the  subtenants  continue  as  if  no  surrender  were  made. 
The  owners  of  the  fee  to  whom  the  surrender  has  been  made  become 
the  landlords  of  the  subtenants  with  only  such  rights  as  the  surrenderor 
would  have  had  to  the  possession  of  the  premises.  The  original  lessee 
could  not  sell,  give  up  or  surrender  anything  that  did  not  belong  to 
him;  and  he  could  not  terminate  the  leases  to  the  subtenants  or 
destroy  their  rights.'^^ 

The  merger  of  the  term  of  the  original  lessee  in  the  estate  of  his 
lessor  would  not  render  the  latter  liable  on  the  covenants  of  the 
Tinder  lease.  There  is  no  privity  of  estate  or  contract  between  an 
original  lessor  and  a  subtenant,  and  such  privity  would  not  be  created 
merely  by  the  surrender  of  the  original  tenant — a  matter  between 
him  and  his  lessor.  A  tenant  may  surrender  his  estate  to  his  land- 
lord, but  if  he  have,  since  its  commencement,  created  some  minor  in- 
terest out  of  it,  or  have  made  an  underlease,  he  cannot,  by  surrender- 
ing, destroy  the  charge  or  affect  the  estate  of  the  underlessee.  Al- 
though the  tenant  cannot  prejudice  the  interest  of  the  underlessee, 
yet  he  will  lose  the  rent  he  has  reserved  upon  the  underlease,  for  the 
rent  is  incident  to  the  reversion;  nor  can  the  surrenderee  have  it, 
for,  although  the  reversion,  to  which  it  was  incident  has  been  conveyed 
to  him,,  yet,  as  soon  as  it  was  so  conveyed,  it  merged  in  the  greater 
reversion.  Hence  the  consequence  is  that,  neither  the  surrenderor 
nor  the  surrenderee  being  entitled  to  the  rent,  the  underlessee  holds 
without  the  payment  of  any  rent  at  all,  excepting  where  the  contrary 
has  been  expressly  provided  by  statute.  In  England  it  is  now  pro- 
vided by  statute'^"  that  when  the  reversion  expectant  on  a  lease  of  any 
tenements  or  hereditaments  is  surrendered,  or  merges,  the  estate  which 
for  the  time  being  confers,  as  against  the  tenant  under  the  lease,  the 
next  vested  right  to  the  premises,  is  to  be  deemed  the  reversion  ex- 
pectant on  the  lease ;  to  the  extent  and  for  the  purpose  of  preserving 
such  incidents  to  and  obligations  on  the  reversion  as,  but  for  the 
surrender  and  merger,  would  have  existed.   However,  there  will  be  no 

^*McMahan  v.  Jacoway,  105  Ala.  Davenport's  Case,  8  Coke  287;  Webb 

585,  18  So.  48.  v.  Russell,  3  Term  R.   393;    Doe  v. 

^^Krlder    v.   Ramsay,    79    N.  Car.  Pyke,  5  M.  &  S.   146;    Burton  Real 

354;  Eten  v.  Luyster,  60  N.  Y.  252;  Prop.,    §    898;     Crabb    Real    Prop., 

Bailey  v.  Richardson,   66  Cal.  416;  §  2447,  b. 

Adams    v.    Goddard,    48    Me.  212;  ^«  8  &  9  Vict,  c.  106,  §  9. 


485        .  BY  LESSOR.  [§   430 

merger  when  the  person  in  whom  the  two  reversionary  interests  vests 
elects  to  keep  the  estate  separate,  and  such  an  intent  may  be  col- 
lected from  the  acts  and  conduct  of  the  parties.'^'^ 

§  430.  An  assignment  of  a  lessor's  interest  under  a  lease  without 
a  transfer  of  any  rights  in  the  reversion,  is  equivalent  to  an  assign- 
ment of  rent.  The  validity  of  this  mode  of  transfer  was  adjudicated 
in  an  early  "English  case  upon  a  devise  of  rents.  The  case  was  this : 
"Lessee  for  thirty  years  of  a  parcel  of  land  lets  it  for  twenty-eight 
years,  rendering  £34  rent  per  annum;  and  after  deviseth  £28  parcel 
of  that  rent  to  his  three  sons,  severally  to  every  of  them  a  third 
part.  One  of  them  brings  debt  for  his  part  of  the  rent.  .  . 
Gawdy  and  Fenner  held,  that  the  action  well  lay ;  for  there  is  no  doubt 
but  that  rent  may  be  devised  and  be  divided  from  the  reversion;  for 
it  is  not  merely  a  thing  in  action,  but  quasi  an  inheritance.  .  .  . 
Popham  and  Clench  e  contra.  For  as  the  lessee  by  his  own  act 
shall  not  divide  the  lessor's  contract,  nor  apportion  his  action; 
so  likewise  the  law  favors  the  lessee,  that  the  act  of  the  lessor 
shall  not  charge  him  with  divers  actions,  or  double  distress,  but 
upon  his  voluntary  attornment;  and  the  contract  being  entire  can- 
not be  apportioned.  But  Popham  agreed,  that  the  rent  was  well  de- 
visable, and  by  that  means  severable  from  the  reversion."'^®  This  case 
left  in  doubt  the  question  whether  a  grantee  of  rents,  by  a  grant  inter 
vivos,  could  maintain  an  action  for  them  in  his  own  name.  It  was 
argued  that  such  an  action  lay  not,  for  default  of  privity;  for  the 
privity  of  estate  remained  with  the  lessor,  and  no  privity  of  contract 
passed  to  the  grantee;  and  of  such  opinion  were  two  justices.  But 
the  two  other  justices  were  of  opinion  that  the  attornment  of  the 
tenant  made  a  privity,  for  his  attornment  is  a  consent  to  the  grant, 
and  that  the  grantee  shall  have  the  rent."  But  in  a  later  case  it  was 
"adjudged,  that  where  the  lessor  assigned  his  rent  without  the  re- 
version, that  the  assignee  (if  the  tenant  agrees)  may  maintain  an 
action  of  debt  for  the  rent,  because  the  privity  of  contract  is  trans- 
ferred."^^ So  that  whatever  doubt  may  have  originally  existed  upon 
this  point,  it  is  now  well  settled  that  the  assignee  of  rent  (without  the 
reversion)  reserved  on  a  lease  for  years  may  have  debt  for  the  rent 
against  the  lessee.^^    And  any  other  remedy,  such  as  attachment  for 

"  Bailey    v.    Richardson,    66    Cal.  same  effect  see  Fisher  v.   Deering, 

416,  5  Pac.  910.  60   111.   114,  overruling  Chapman  v. 

'^Ards  V.  Watkin,  2  Cro.  Eliz.  637.  McGrew,    20    111.    101. 

"Robins  v.  Cox,   1   Lev.   22.  ^' Vin.  Abr.  "Estate"  B,  b.  18,  pi. 

'°  Marie  v.  Flake,  3  Salk.  118.     To  10;  Bac.  Abr.  "Rent"  M;  Gilbert  on 


430] 


ASSIGNilEXT   OF  LE.i^ES. 


48G 


rent  which  is  open  to  the  landlord,  nia}^  be  availed  of  b\-  the  assignee 
to  recover  the  rent.^- 

The  English  law  seems  now  to  be  definitely  settled  that  under  the 
statute  of  32  Hen.  VIII,  an  assignee  of  the  rent,  witliout  the  reversion, 
could  recover  when  there  was  an  attornment,  and  that  such  an  assignee 
could,  under  the  statute  of  4  Anne,  recover  without  an  attorn- 
ment.*^ To  give  the  assignee  of  the  reversion  a  more  complete  remedy 
4  and  5  Anne,  chapter  IG,  section  9,  was  adopted,  dispensing  with 
the  necessity  for  an  attornment.  In  many  states  of  the  Union,  this 
latter  act  has  been  adopted,  and  the  decisions  of  their  courts  conform 
to  its  provisions.  When  rent  is  assigned,  without  the  reversion,  the 
assignee. may  sue  the  lessee  for  rent  accruing  after  the  assignment; 
because  the  privity  of  contract  is  transferred.^*  An  assignment  of  the 
rent  before  it  is  due  will  enable  the  assignee  to  maintain  an  action  in 
his  own  name;  but  if  made  after  the  rent  is  due,  it  being  a  mere 
chose  in  action,  the  assignment  will  not  convey  any  right  of  action 
to  the  assignee,  nor  divest  the  lessor  of  the  right  to  maintain  the 
action.*^ 


Rents,  165-6;  4  Cruise  Dig.,  Title 
28.  ch.  3,  §§  19,  20,  21,  31;  Allen  v. 
Bryan,  5  B.  &  C.  512;  Demarest  v. 
Willard,  8  Cow.  (N.  Y.)  206;  Farley 
V.  Craig,  11  N.  J.  L.  312;  Ryerson 
V.  Quackenbush,  26  N.  J.  L.  236, 
251;  Willard  v.  Tillman,  2  Hill  (N. 
Y.)  274;  Leonard  v.  Burgess,  16 
Wis.  41;  Martin  v.  Martin,  7  Md. 
368;  Abrams  v.  Sheehan,  40  Md. 
446;  Abercrombie  v.  Redpath,  1 
Iowa  111;  Watson  v.  Hunkins,  13 
Iowa  547. 

*'  Haywood  v.  O'Brien,  52  Iowa 
537,  3  N.  W.  545. 

"Williams  v.  Haywood,  1  E.  &  E. 
1040,  102  E.  C.  L.  1040,  28  L.  J.  Q. 
B.  374.  The  court  say:  "In  our 
opinion  stat.  4  Anne,  c.  16,  §  19,  ren- 
ders attornment  unnecessary  in 
such  a  case  as  the  present;  and, 
by  force  of  that  statute,  the  same 
privity  is  created  between  the  plain- 
tiff, as  grantee  of  the  rent,  and  the 
defendant,  the  tenant  of  the  land 
out  of  which  the  rent  issues,  as  if 
the  defendant  had  actually  attorned 


to  the  plaintiff.  Attornment  is 
stated  by  Lord  Coke  to  be  an  agree- 
ment of  the  tenant  to  the  grant  of 
the  seignory  or  of  a  rent.  .  .  .  Co. 
Litt.  309a.  Stat.  4  Anne,  c.  16,  §  9, 
appears  to  have  been  intended  to 
meet  both  parts  of  this  definition. 
.  .  .  The  statute,  therefore,  in 
terms  creates  the  feame  privity,  be- 
tween the  grantee  of  the  rent  and 
the  tenant  of  the  lands  out  of  which 
it  issues,  as  an  attornment  would 
have  done  if  the  tenant  had  actually 
attorned  to  the  grantee." 

''Ptafl  V.  Golden,  126  Mass.  402; 
Hunt  v.  Thompson,  2  Allen  (Mass.) 
341;  Kendall  v.  Carland,  5  Cush. 
(Mass.)  74;  Patten  v.  Deshon,  1 
Gray  (Mass.)  325;  Ryerson  v. 
Quackenbush,  26  N.  J.  L.  236;  Allen 
V.  Bryan,  5  B.  &  C.  512;  Demarest 
V.  Willard.  8  Cow.  (N.  Y.)  206;  Wil- 
lard V.  Tillman,  2  Hill  (N.  Y.)  274; 
Childs  V.  Clark,  3  Barb.  Ch.  52; 
Moffatt  V.  Smith,  4  N.  Y.  126. 

*"  Ryerson  v.  Quackenbush,  26  N. 
J.  L.  236. 


II 


487  BY  LESSEE.  [§431 

As  has  already  appeared  in  regard  to  assignments  of  a  reversion, 
no  formal  act  of  attornment  is  necessary  where  the  lessor  assigns  the 
lease  alone,  the  lessee  at  once  being  under  legal  obligation  to  pay  the 
rent  to  the  assignee.®''  In  case  part  of  the  crop  is  reserved  as  rent,  an 
assignment  of  rent  would  give  the  assignee  the  right  to  maintain  re- 
plevin for  the  crop  as  soon  as  the  share  to  be  paid  as  rent  had  been 
divided  off  by  the  tenant.®^ 

The  right  of  an  assignee  of  a  reversion  to  the  rent  incident  to  it 
is  subject  to  all  the  equities  or  just  demands  of  the  tenants  or  other 
incumbrances  affecting  and  controlling  the  payment  of  rent.  Where 
a  landlord  gives  an  order  on  his  tenant,  which  the  tenant  accepts,  to 
pay  the  accruing  rent  to  a  third  person,  such  person  thereby  acquires 
an  equitable  lien  on  the  rent.  A  purchaser  of  the  reversion  with  full 
knowledge  of  the  facts  is  estopped  from  claiming  the  rent  so  as- 
signed.^* 

II.     By  Lessee. 

§  431.  Transfer  of  lessee's  interest. — Although  in  its  origin  a  les- 
see's interest  consisted  in  a  mere  contractual  right  against  the  owner 
of  the  land,  it  early  grew  to  be  a  recognized  estate  in  the  land  known 
as  a  chattel  real  which  carried  with  it  the  ordinary  rights  and  inci- 
dents of  property  and  of  ownership.  So  lessees  have  the  common  law 
right  to  assign  or  transfer  their  interest  to  a  third  person,  to  put  him 
into  possession  of  the  property,  and  to  clothe  him  with  all  their 
rights  and  privileges  under  the  contract,  and  this  right  can  only 
be  restrained  by  express  stipulation.  The  right  to  transfer  the  whole 
includes  the  right  to  transfer  any  interest  less  than  the  whole.  The 
well-settled  rule  at  common  law  gives  the  owner  of  a  leasehold  estate 
the  right  to  alienate  his  interest,  either  by  assigning  the  lease  in  toto 
or  by  sub-letting  a  part  of  the  premises.^''     Making  a  sublease  is  not 

'"Kelly   v.    Bowerman,    113    Mich.  Moffatt,    2     Blackf.     304.      Illinois: 

446,  71  N.  W.  836;  Perrin  v.  Lepper,  Rowland  v.  White,  48  111.  App.  236; 

34  Mich.  292.  Kew  v.  Trainor,  150  111.  150,  37  N. 

"Lufkin  V.  Preston,  52  Iowa  235,  E.  223,  affirming  50  App.  629.     Kan- 

3  N.  W.  58.  sas:     Mabry  v.   Harp,   54   Kan.   398, 

^Abrams  V.  Sheehan,  40  Md.  446.  36   Pac.  743.     Kentucky:     Montague 

*"  Alabama:    Crommelin  v.  Thiess,  v.  Jamison,  16  Ky.  L.  R.  238.   Louis- 

31  Ala.  412;  Nave  v.  Berry,  22  Ala.  lana:     Weatherly  v.   Baker,   25   La. 

382.      Georgia:     Robinson   v.   Perry,  Ann.  229.     Maine:    Wheeler  v.  Hill, 

21  Ga.  183,  68  Am.  Dec.  455.    Iowa:  16    Me.    329.     Minnesota:     Gould   v. 

Goldsmith  v.  Wilson,   68   Iowa   685,  Sub-District    No.    3,    8    Minn.    427. 

28   N.   W.   16.     Indiana:     Taylor   v.  Mississippi:      Harris    v.    Frank,    52 


§    431]  ASSIGNMENT  OF  LEASES, 

a  ground  for  which  the  landlord  may  reenter  in  the  absence  of  any! 
express  provisions  to  that  effect.®" 

A  lease  for  an  indeterminate  period,  with  a  reservation  of  rent,  is 
assignable,  since  it  creates  a  tenancy  from  year  to  year,®^  But  one; 
stipulating  that  the  holding  may  be  determined  by  either  party  on.; 
four  days'  notice,  gives  to  the  lessee  no  certain  indefeasible  interest 
which  he  may  transfer  to  another.®^  Equity  will  not  enjoin  the; 
assignment  of  a  lease  on  the  ground  that  the  proposed  assignee  isj 
insolvent,  where  the  assignor's  responsibility  for  rent  will  continue.®*^ 

A  parol  contract  restricting  the  right  of  the  lessee  to  assign  or  sub- ; 
let  would  be  inadmissible  as  a  collateral  stipulation  because  it  would] 
contradict  the  terms  of  the  lease.     In  the  construction  of  a  written 
contract  for  the  purpose  of  determining  whether  a  parol  agreement; 
is  consistent  with  it,  its  legal  implications  and  incidents  should  be. 
considered  as  written  out  and  incorporated  in  it.     If  this  were  done 
there  would  be  found  in  a  lease  an  express  stipulation  that  the  lessees 
might  assign  their  term  to  whomsoever  they  pleased,  and  that  their  as- 
signee should  have  the  same  right  to  possess  and  enjoy  that  they 
themselves  had.     The  parol  proof  offered  would  conflict  with  this 
stipulation  and  would  be  incompetent.***     With  regard  to  the  right 
to  assign  leasehold  estates,  no  stress  should  be  laid  upon  the  use  of 
the  word' assigns ;  if  the  lease  is  made  to  the  lessee,  his  executors,  or 
administrators,  his  assigns  are  included  in  himself,  and  the  right  to 
assign,  unless  restrained,  is  incident  to  his  estate.®^ 

An  exception  to  the  general  rule  has  been  made  in  case  of  a  lease 
upon  shares.  A  lease  upon  shares  is,  according  to  this  view,  a  per- 
sonal contract  and  not  assignable  where  the  amount  of  rent  received 
must  depend  on  the  character  and  skill  of  the  lessee,  or  where  it  gives 
the  lessee  the  use  of  the  lessor's  tools  on  condition  that  they  may 
be  properly  kept.  Such  a  personal  lease  is  forfeited  by  an  assign- 
ment and  attempt  to  transfer  possession,  and  the  lessor  may  take  im- 
mediate steps  to  recover  the  premises.  Under  such  a  lease  the  land- 
Miss.  155.  No.  Carolina:  Krider  v.  '"  Pearcy  v.  Heath,  1  Ky.  L.  R. 
Ramsay,  79  N.  Car.  354.    New  York:      407. 

Howard    v.     Ellis,     4     Sandf.     369;  "Jackson    v.    Hughes,    1    Blackf. 

Brouwer  v.  Jones,  23  Barb.  153;   De      (Ind.)   421. 

Forest  v.  Byrne,  1  Hilt.   43.     Ohio:  ^=  Say  v.  Stoddard,  27  Ohio  St.  478. 

Crowe  V.   Riley,    63   Ohio    St.    1,   57         ^^  McBee  v.  Sampson,  66  Fed.  416. 
N.  E.   956.    Tennessee:     Eastham  v.         "Nave  v.  Berry,  22  Ala.  382. 
Crowder,  10  Humph.  194.     English:  "=  Church  v.   Brown,   15   Ves.   258, 

Crusoe   v.    Bugby,   2    W.   Bl.    766,    3     263. 
Wils.  234;  Mayor  &c.  v.  Pattison,  10 
East  130,  136. 


I 


489  BY  LESSEE.  [§    431 

lord  has  a  right  to  choose  his  tenant,  and  he  may  be  willing  to  lease 
upon  shares  to  one  man,  and  yet  be  wholly  unwilling  to  let  another 
have  possession  on  any  terms.  So  with  reference  to  the  use  of  hi& 
farm  implements,  one  might  be  a  prudent,  careful  man  who  would 
take  good  care  of  them,  while  another  more  reckless  would  not  be  al- 
lowed to  use  them  on  any  terms.®^ 

]SI"ot  only  is  it  the  general  rule,  subject  to  this  exception,  that  the 
ownership  of  a  chattel  real  carries  with  it  the  right  to  assign  and 
transfer  such  interest,  but  it  is  further  true  that  after  the  creation 
of  the  estate,  no  restriction  can  be  placed  upon  the  alienation  of  a. 
leasehold.  It  is  laid  down  by  Lord  Coke  that  "if  a  man  be  possessed 
of  a  lease  for  years,  .  .  .  and  give  or  sell  his  whole  interest  or 
property  therein,  upon  the  condition  that  the  donee  shall  not  alien  the 
same,  the  same  is  void,  because  his  whole  interest  and  property  is- 
out  of  him,  so  as  he  ham  no  possibility  of  a  reverter,  and  it  is  against 
trade  and  traffic  and  bargaining  and  contracting  between  man  and 
man,'"'^  The  rule  is  different,  however,  in  regard  to  the  original  con- 
tract of  lease.  In  the  instrument  creating  the  estate,  a  condition  by 
which  a  lease  is  to  be  void  if  the  lessee  assigns  is  clearly  good  in  a 
term  for  years  or  for  life.  It  is  not  a  capricious  exercise  of  power 
on  the  part  of  the  lessor.  In  a  lease  for  agricultural  purposes,  the 
lessor  is  interested  in  having  a  good  tenant  and  one  who  understands 
his  business.  He  is  more  so  in  a  lease  for  mining  purposes,  where 
greater  skill  is  required  and  more  confidence  is  necessarily  reposed  in 
accounting  for  the  tolls  or  rent.^^  Therefore,  it  may  be  stated  as  a 
general  rule  that  an  unauthorized  assignment  is  only  valid  when  the 
lease  itself  contains  no  restriction  against  assignment  or  sub-letting.^^ 

An  assignment  of  the  lease  carries  with  it  a  clause  giving  the  ten- 
ant the  right  to  renew  at  the  end  of  the  term  and  as  well  as  all  other 
clauses. ^''^  The  right  of  renewal  conferred  by  a  lease  constitutes  a 
part  of  the  tenant's  interest  in  the  land  and  may  be  sold  and  as- 
signed by  him,  and  the  benefits  of  this  right  may  be  enforced  by  the 
assignee.  ^''^ 

»«Randell  v.  Chubb,  46  Mich.  311,  Mabry  v.  Harp,  53  Kan.  398,  36  Pac. 

9  N.  W.  429;  Lewis  v.  Sheldon,  113  743;    Goldsmith  v.  Wilson,  68  Iowa 

Mich.  102,  61  N.  W.  269.  685,    28    N.    W.    16;    Gould    v.    Sub- 

"'  2   Co.   Inst.   30,  cited   in  Turner  District  No.  3,  8  Minn.  427. 

v.  Johnson,  7  Dana   (Ky.)   435,  438.  ^"^  Sutherland     v.     Goodnow,     108 

'^Hargrave   v.    King,    5    Ired.   Eq.  111.   528. 

(N.  Car.)   430.  ^"^  McCIintock  v.  Joyner,  77   Miss. 

">'  Crommelin    v.    Thiess,    31    Ala.  678,  27  So.  837. 
412;    Nave   v.    Berry,    22    Ala.    382; 


§§    432,    433]  ASSIGNMEXT    OF   LEASES.  490 

§  432.  Statutory  provisions  against  assignment  and  subletting 
have  been  enacted  in  some  states  and  to  .that  extent  the  right  existing 
at  common  law  to  transfer  leasehold  estates  has  been  modified  and 
changed.  Thus,  in  Kansas,^*^-  in  Kentuckv^°^  and  in  Missouri,^ "■*  a 
tenant  who  has  a  term  for  less  than  two  years  is  forbidden  to  assign 
it  without  the  consent  of  his  landlord  and,  if  he  does  so,  it  works  a 
forfeiture  of  the  lease  at  the  election  of  the  lessor.  But  an  assign- 
ment of  a  lease  for  a  term  of  two  years  or  more,  without  landlord's 
consent,  does  not  operate  as  a  forfeiture  or  authorize  the  landlord  to 
reenter,  although  the  term  would  expire  in  less  than  two  years  from 
the  date  of  the  assignment.^"^  However,  in  spite  of  such  a  statute, 
the  right  of  action  for  injury  to  possession  is  in  the  tenant  and  not 
in  the  landlord.  The  wrongful  ouster  of  a  tenant  by  a  stranger  is  not 
of  itself  a  legal  ground  for  recovery  by  a  landlord  against  a  stranger.^'^'^ 
So  where  a  lessee  permits  another  to  occupy  a  part  of  the  house 
rented,  retaining  the  control  in  himself,  there  is  no  sub-tenancy."^ 
It  resulted  from  such  a  statute  that  a  term  from  month  to  month 
could  not  be  sold  on  an  execution  against  the  tenant  without  the  con- 
sent of  the  landlord.  To  sanction  a  transfer,  by  means  of  legal  pro- 
cess, of  the  tenant's  interest  in  such  an  estate,  would  be  to  afford 
an  easy  mode  of  evading  the  plain  meaning  of  the  law.^°^  Where  a 
person  in  good  faith  purchases  of  a  tenant,  having  a  term  of  less 
than  two  years,  an  interest  in  his  lease,  without  the  assent  of  the  land- 
lord, such  contract  is  voidable  only  not  absolutely  void.  With  the 
subsequent  assent  of  the  landlord  the  contract  becomes  valid ;  all  de- 
pends on  the  action  of  the  landlord.^°°  Contracts  in  contravention 
of  the  statute  are  not  to  be  held  void  unless  the  court,  from  an  exami- 
nation of  the  statute,  shall  judge  such  to  have  been  the  intent  of  the 
legislature.^^" 

§  433.  In  Georgia  it  is  provided  by  statute  that  an  estate  for  years, 
if  it  be  in  lands,  passes  as  realty.  Such  an  estate  "carries  with  it  the 
right  to  use  in  as  absolute  a  manner  as  a  greater  estate."^^^     It  is 

"'Gen.   St.  1889,  §   3620.  "'Waller   v.    Morgan.   18   B.   Mon. 

"^'Rev.  St.  1894,  §  2292;  R.  S.  1889.  (Ky.)   136. 
§  6368.  "^Holliday  v.  Aehle,  99  Mo.  273. 

^■^Rev.  St.  1889,  §  4107.  "' Mabry  v.  Harp,  53  Kan.  398,  36 

""Grizzle  v.  Pennington,  14  Bush  Pac.  743;   Waite  v.  Teeters,  36  Kan. 

(Ky.)    115;    Montague   v.    Jamison,  604,  14  Pac.  146. 
15  Ky.  L.  R.  238.  ""  Bemis  v.  Becker,  1  Kan.  226. 

"«Walden  v.  Conn,  84  Ky.  312,  1         "^  Code  1895,  §§  3109,  3111. 
S.  W.  537. 


1 


491  BY  LESSEE.  [§    433 

further  enacted  in  regard  to  the  rehTtion  of  landlord  and  tenant  that 
"when  the  owner  of  real  estate  grants  to  another  simply  the  right  to 
possess  and  enjoy  the  use  of  such  real  estate,  either  for  a  fixed  time 
or  at  the  will  of  the  grantor,  and  the  tenant  accepts  the  grant,  the 
relation  of  landlord  and  tenant  exists  between  them.  In  such  case 
no  estate  passes  out  of  the  landlord  and  the  tenant  has  only  a  usu- 
fruct, which  he  cannot  convey  except  by  the  landlord's  consent,  and 
which  is  not  subject  to  le\7  and  sale;  and  all  renting  or  leasing  of 
such  real  estate  for  a  period  of  time  less  than  five  years  shall  be  held 
to  convey  only  the  right  to  possess  and  enjoy  such  real  estate  and  to 
pass  no  estate  out  of  the  landlord,  and  to  give  only  the  usufruct, 
unless  the  contrary  be  agreed  upon  by  parties  to  the  contract,  and  so 
stated  therein.""-  These  sections  were  held  to  furnish  no  ground 
why  an  estate  for  years  could  not  be  bought  and  sold  like  any  other 
real  estate.  The  section  denying  the  right  of  the  tenant  to  convey 
applies  to  the  case  where  the  tenant  has  a  mere  use.^^^  However,  if 
the  tenant  holds  from  year  to  year,  he  has  no  estate  in  the  land,  and 
therefore  cannot  assign  his  interest,  so  that  the  term  cannot  become 
a  part  of  the  tenant's  assets  in  case  of  his  insolvency.^"  Without  the 
landlord's  consent,  the  tenant  has  no  right  to  transfer  his  lease,  and 
the  transferee  would  be  a  mere  intruder  subject  to  be  summarily 
ousted  by  the  landlord.^^^  Furthermore,  a  tenant  has  no  right  to 
impose  a  sub-tenant  upon  the  landlord  without  his  consent,  and  if 
it  is  attempted,  the  sub-tenant  becomes  the  tenant  of  the  landlord,  if 
he  elects  to  recognize  him  as  such,  and  not  the  tenant  of  the  tenant 
who  placed  him  upon  the  premises,  without  the  consent  of  the  land- 
lord. The  landlord  so  recognizing  the  sub-tenant,  may  proceed 
against  him  for  holding  over,  or  he  may  refuse  to  recognize  the  ten- 
ancy and  proceed  to  expel  the  person  placed  upon  the  premises  by  the^ 
tenant,  without  his  consent,  as  an  intruder,  in  any  manner  prescribed 
by  law  for  the  expulsion  of  trespassers  or  intruders."*^  But  in  order 
for  the  relation  of  landlord  and  tenant  to  exist  between  the  owner  of 
the  property  and  a  sub-tenant,  some  affirmative  action  must  be  had 
by  the  landlord  showing  that  he  elected  to  treat  the  sub-tenant  as  liis 

"=Code  1895,  §  3115.  "' McBurney  v.   Mclntyre,  38  Ga. 

1"  Clark  V.  Herring,  43  Ga.  226.  261;    Smith  v.  Turnley,  44  Ga.  243, 

"*Stultz   V.    Fleming,    83    Ga.    14,  247;   McConnell  v.  East  Point  Land 

9  S.  E.  1067.  Co.,  100  Ga.  129,  28  S.  E.  80;   Hud- 

"=Bass  V.   West,   110   Ga.   698,   36  son  v.  Stewart,  110  Ga.  37,  35  S.  E. 

S.  E.  244;  Stultz  v.  Fleming,  83  Ga.  178. 
14,  9  S.  E.  1067. 


§    434]  ASSIGXMEXT  OF  LEASES.  492 

own  tenant,  it  not  being  sufficient  that  the  landlord  has  knowledge  of 
the  sublease  and  makes  no  objection  to  it.^^^ 

§  434.  In  Texas  the  statute  against  assignment  reads  that  a  person 
renting  lands  shall  not  rent  or  lease  said  lands  during  the  term  of  his 
lease  to  any  other  person  without  first  obtaining  the  consent  of  the 
landlord,  his  agent  or  attorney."^  This  statute  has  application  to 
sub-lettings  as  well  as  assignments  and  was  enacted  to  secure  to  the 
owners  of  lands  the  selection  of  persons  to  occupy  and  care  for  them, 
as  well  as  to  secure  them  the  right  to  have  none  occupy  their  lands 
whose  ability  or  willingness  to  pay  the  rents  contracted  for  was  not 
satisfactory.  Under  the  statute  persons  renting  lands  or  tenements 
stand  as  they  would,  in  the  absence  of  such  statute,  under  contracts 
containing  covenants  against  sub-lettings  or  assignments;  and  on  vio- 
lation of  the  statute,  the  rights  and  remedies  of  the  parties  are  the 
same  as  they  would  be  under  covenants.  Such  remedies  a  landlord 
may  waive,  and  when  he  does  so,  the  legal  relation  between  the  par- 
ties must  be  determined  by  common  law  principles."''  But  when  the 
landlord  does  not  waive  the  restrictions  raised  by  the  statute,  a  per- 
son holding  under  an  illegal  sub-letting  is  a  trespasser/-*'  so  far  as 
the  landlord  is  concerned  he  may  be  treated  as  an  employe  of  the 
lessee.^^^  A  covenant  in  a  lease  that  the  lessee  has  a  right  to  sublet 
the  premises  runs  with  the  land  and  authorizes  the  lessee  to  assign 
the  lease.  Such  assignment  conveys  the  term.  After  assignment  by 
lessee  he  could  not  surrender  the  lease  or  any  right  under  it.  Author- 
ity to  sub-let  carries  with  it  authority  to  assign,  and  a  lessee  holding 
under  a  lease  authorizing  him  to  sub-let  may  mortgage  his  interest.^^^ 
For  a  landlord  to  accept  rent  from  an  assignee  of  the  term  would 
constitute  a  waiver  of  a  forfeiture  caused  by  a  breach  of  the  statutory 
provision.  While  an  assignment  does  not  come  strictly  within  its 
letter,  it  is  within  the  spirit  of  the  statute.     Both  assignments  and 

sub-leasing  are  equally  within  the  evil  sought  to  be  remedied  by  this 
law.123 

"'  Hudson  V.  Stewart,  110  Ga.  37,  ^^  Forrest  v.  Durnell,  86  Tex.  647, 

35  S.  E.  178.  26  S.  W.  481. 

"«Civ.  St.  1895,  §  3250.  ^"  Menger   v.   Ward,    87    Tex.   622, 

"^  Forrest  v.  Durnell,  86  Tex.  647,  30  S.  W.  853,  affirming  28  S.  W.  831. 

26  S.  W.  481.  ^===Gulf  &c.  R.  Co.  v.  Settegast,  79 

"0  Rose  v.  Riddle,  3  Tex.  App.  Civ.  Tex.  256,  15  S.  W.  228. 
Cas.,  §  299;   Matthews  v.  Whitaker, 
(Tex.)    23  S.  W.  538. 


493 


BY  LESSEE. 


[§  435 


§  436.  Where  the  whole  of  the  term  of  a  leasehold  is  assigned, 
there  is  no  relation  of  landlord  and  tenant  between  the  assignor  and 
assignee  but  only  that  of  seller  and  purchaser ;  and  if  the  original  les- 
sor had  no  title  when  the  lease  was  made,  there  is  a  failure  of  con- 
sideration and  the  assignor  cannot  recover  unpaid  installments  of 
purchase  money.  An  assignment  of  a  term  for  years  is  governed  gen- 
erally by  the  rules  applicable  to  the  sale  of  personal  property;  and, 
on  such  sale,  while  as  to  the  quality  of  the  thing  sold  caveat  emptor 
is  the  general  rule,  the  seller  impliedly  warrants  the  title. ^-*  The 
rule  has  been  expressly  applied  to  the  sale  of  a  lease  that  in  a  con- 
tract for  such  sale  there  is  ..n  implied  undertaking  to  make  out  the 
lessor's  title  and  right  to  demise,  as  well  as  that  qf  the  vendor  to  the 
lease  itself,  which  implied  undertaking  is  available  at  law  as  well  as  in 
equity.^^^  Yet  there  are  authorities  taking  the  opposite  view  to  the 
effect  that  no  covenants  are  implied  on  the  assignment  of  a  lease. ^-'^ 

The  doctrine  has  been  advanced  that  the  assignee,  before  proceed- 
ing against  the  lessee  on  the  assignment,  must  attempt  to  hold  the 
original  lessor  or  show  him  to  be  insolvent.  If  an  assignee  is  evicted 
through  a  defect  in  the  lessor's  title,  he  may  sue  the  lessor  for  com- 
pensation; but  in  case  of  a  mere  assignment  of  a  lease,  the  assignor 
is  not  liable  to  restore  the  purchase  money  in  case  of  eviction,  and 
especially  in  a  case  where  the  lessor's  representatives  have  not  been 
previously  resorted  to,  or  shown  to  be  insolvent. ^-^ 


"^Jeffers  v.  Easton,  113  Cal.  345. 
45  Pac.  680;  Wetzell  v.  Richcreek, 
53  Ohio  St.  62;  Souter  v.  Drake,  5 
B.  &  Ad.  992;  Farrer  v.  Nightingal, 
2  Esp.  639;  2  BI.  Com.  451;  Benja- 
min on  Sales,  631;  1  Parsons  on 
Contracts  (8th  ed.)  573,  et  seq. 

'^  Souter  v.  Drake,  5  B.  &  Ad.  992, 
1002,  per  Lord  Denman,  quoted  in 
Wetzell  V.  Richcreek,  53  Ohio  St. 
62. 

'=«  Waldo  V.  Hall,  14  Mass.  486; 
Blair  v.  Rankin,  11  Mo.  440.  In  the 
latter  case  it  is  said:  "Although 
the  words  grant  or  demise,  will  in 
a  lease  create  an  implied  covenant, 
against  the  lessor,  yet  it  is  nowhere 
said  that  the  same  words  will  in 
an  assignment  create  an  implied 
covenant  against  the  assignor.  The 
object  and  intent  of  the  parties  in 


making  an  assignment  is  to  put  the 
assignee  in  the  place  of  the  lessee, 
and  when  that  is  done,  the  assignee 
ceases  to  have  any  further  concern 
with  the  contract  unless  he  has 
bound  himself  by  express  cov- 
enants. This  is  the  view  of  the 
question  that  was  taken  by  the 
court  in  the  case  of  Waldo  v.  Hall, 
14  Mass.  486,  and  the  court  says: 
'We  can  find  no  case  of  an  action 
by  an  assignee  against  an  assignor, 
upon  a  covenant  in  law  for  an  evic- 
tion in  consequence  of  an  act  done 
by  the  original  lessor.  It  must  bo 
admitted  that  the  dicta  of  Sugden, 
Buller,  and  some  of  the  more  an- 
cient authors  create  some  doubt  in 
relation  to  the  matter.'  " 

^="  McClenahan  v.  Gwynn,  3  Munf. 
(Va.)   556. 


§■  436]  ASSIGXilEXT  OF  LEASES.  -iO-i 

In  an  action  for  the  consideration  for  an  assignment  of  a  lease  for 
a  term  of  years,  an  eviction  by  the  landlord  for  non-payment  of  rent 
would  in  no  way  operate  as  a  defense.  ^^^  To  defeat  the  suit  it  is  in- 
cumbent on  the  assignee  to  show  that  he  has  been  evicted  by  a  para- 
mount title  or  that  the  title  under  which  he  held  from  the  assignor 
has  failed.^^^  In  the  sale  of  a  lease  of  a  house,  if  the  vendor  fails  to 
show  the  lease  to  the  vendee  and  does  not  inform  him  of  a  covenant 
therein,  that  in  case  of  destruction  of  the  house  by  fire  the  lease  shall 
terminate  and  become  void,  this  is  such  a  concealment  as  vitiates  the 
contract.  So  in  case  the  house  be  destroyed  by  fire  in  a  short  time, 
equity  will  relieve  the  vendee  by  enjoining  the  vendor  from  collecting 
the  purchase  money,  and  by  directing  his  notes  for  the  same  to  be 
given  up  and  cancelled. ^^^  In  every  contract  for  the  sale  of  laud,  a 
condition  is  implied  that  the  vendor  shall  convey  a  good  title ;  and  if 
the  sale  be  of  a  lease  the  condition  is  implied  that  the  lessor  had  such 
a  title  as  would  make  the  lease  good.^^^ 

It  is,  of  course,  competent  for  the  parties  to  introduce  into  the  as- 
signment any  covenant  or  stipulation  pertinent  to  the  sul)ject  which 
they  have  agreed  upon ;  and  it  is  not  imusual  for  the  assignor  to  cove- 
nant that  the  indenture  of  lease  is  good,  that  he  has  power  to  assign, 
that  he  will  save  the  assignee  harmless  from  former  grants  and  in- 
cumbrances, and  for  quiet  enjoyment.  A  guaranty  executed  con- 
temporaneously with  the  delivery  of  the  assigned  lease,  and  the  pay- 
ment of  the  balance  of  the  purchase  price  becomes  a  part  of  the  con- 
tract of  assignment  and  rests  upon  sufficient  consideration.  It  amounts 
to  an  express  covenant  of  the  assignor's  title. ^^- 

§  436.  What  passes  on  an  assignment. — In  a  deed  of  assignment 
or  conveyance  of  leaseholds,  there  was  a  clause  to  the  efi^ect  that  the 
lessees  transferred  "all  their  right,  title  and  interest  of,  in  and  to  the 
engines,  boilers,  tanks,  and  all  other  fixtures  and  personal  property 
situate  upon  and  appertaining  to  the  above  leasehold  interest  and  oil 
well."  It  was  held  that  this  clause  did  not  pass  or  convey  the  oil  that 
was  in  the  oil  tanks  at  the  date  of  said  deed,  although  it  was  on  the 
leasehold  estate,  as  it  did  not  appertain  to  the  leasehold  interest  which 
was  conveyed. ^^^     The  word  "lease,"  when  used  in  a  contract  of  as- 

^=' Howard  v.  Britton,  71  Tex.  286,  v.    Rayer,    9    Price    488;    Krause   v. 

9  S.  W.  73.  Kraus,    58    111.    App.    559. 

^=®Peck  V.  Hensley,  20  Tex.  673.  ^^'^  Wetzell   v.    Richcreek,    53    Ohio 

""Snelson    v.    Franklin,    6    Munf.  St.   62. 

(Va.)    210.  "^Dresser   v.    Transportation    Co. 

"'Fry   Spec.   Per.,    §    354;    Purvis  8  W.  Va.  553. 


495  BY  LESSEE.  [§    437 

signment  to  designate  the  interest  transferred,  has  a  definite  legal 
signification — it  means  the  estate  in  the  land.  An  agreement  in  writ- 
ing selling  a  "lease"  does  not  carry  with  it  oil  that  had  heretofore 
been  pumped  from  an  oil-well  on  the  land  so  leased.  Such  a  contract 
is  not  vague  or  ambiguous  and  parol  evidence  is  inadmissible  to  con- 
;radict  or  vary  its  terms. ^^* 

§  437.  In  accordance  with  the  principle  that  the  form  of  the  in- 
stmment  of  assignment  is  immaterial/-^  it  has  been  held  that  a  mem- 
orandum suflBcient  to  satisf}-  the  statute  of  frauds  can  be  collected 
from  letters  and  telegrams.^^*'  It  is  well  settled  that  the  memorandum 
must  contain  within  itself,  or  by  some  reference  to  other  written  evi- 
dence, the  names  of  the  vendor  and  vendee,  and  all  the  essential 
terms  and  conditions  of  the  contract  expressed  with  such  certainty 
as  may  be  understood  from  the  memorandum  and  other  written  evi- 
dence referred  to,  without  any  aid  from  parol  testimony.^^^  But  it 
is  not  a  fatal  objection  that  the  messages  come  from  an  agent  who 
does  not  disclose  his  principal's  name.^"*  The  provisions  of  the  stat- 
ute are  complied  with  if  the  names  of  competent  contracting  parties 
appear  in  the  writing,  and  if  a  party  be  an  agent,  it  is  not  necessary 
that  the  name  of  the  principal  shall  be  disclosed  in  the  writing;  the 
principal  may  sue  or  be  sued  as  in  other  cases.^^® 

If  a  party  purchase  what  is  in  reality  but  a  leasehold  estate  and 
take  of  the  lessee,  or  his  assignee,  a  transfer  or  conveyance,  in  form 
an  absolute  conveyance  in  fee,  yet  in  judgment  of  law,  such  party 
is  only  assignee  of  the  terms,  and  tenant  of  the  lessor.  The  mere 
form  of  the  deed,  though  professing  to  pass  a  fee  simple  estate,  will 
not  operate  as  a  disseisin  of  the  superior  landlord's  estate,  but  only  as 
an  assignment  of  the  unexpired  term.^^*'     A  conveyance  of  leased 

"*McGuire  v.  Wright,  18  W.  Va.  109;   Dykers  v.  Townsend,  24  N.  Y. 

507.  57;  Lerned  v.  Johns,  9  Allen  (Mass.) 

'^  Craig    v.    Summers,    47    Minn.  419;    Hunter  v.   Giddings,   97   Mass. 

189,  49  N.  W.  742;   Pelton  v.  Place,  41;     Williams    v.     Bacon,     2     Gray 

71   Vt.    430,    46    Atl.    63;    Walsh    v.  (Mass.)  387;  Salmon  Falls  Mfg.  Co. 

Martin,  69  Mich.  29,  37  N.  W.  40.  v.   Goddard,   14  How.    (U.   S.)    446; 

^'''Kingsley    v.    Siebrecht,    92    Me.  Browne    on    St.    of    Frauds,    §    373; 

23,  42  Atl.  249.  3  Parsons  on  Contracts    (5th  Ed.), 

"'  Williams    v.    Robinson,    73    Me.  p.  10. 
186.  ""McLennan    v.    Grant,    8    Wash. 

^=«Kingsley    v.    Siebrecht,    92    Me.  603,    36    Pac.    682;    Worthington    v. 

23,  42  Atl.  249.  Lee,  61  Md.  530;   Esty  v.  Baker,  48 

1'-°  Thayer  v.  Luce,  22  Ohio  St.  62;  Me.  495. 
Pugh    v.    Chesseldine,    11    Ohio    St. 


§    438]  ASSIGISTMEXT   OF  LEASES.  49( 

premises  oy  the  lessee  to  one  having  notice  of  the  lease,  operates 
merely  as  an  assignment  of  the  term,  and  although  the  term  has  ex- 
pired before  the  grantee  takes  the  conveyance  and  goes  into  posses- 
sion, yet  if  he  has  notice  that  the  premises  are  held  by  his  grantor  as 
tenant  to  another,  and  there  has  never  been  any  surrender  of  posses- 
sion to  the  landlord,  there  will  be  deemed  to  be  a  holding  over  with  the 
consent  of  the  landlord,  and  the  gi-antee  will  become  a  tenant  from 
3'ear  to  year  or  at  will  and  liable  for  the  stipulated  rent.^*^ 

A  bequest  in  a  will  of  all  the  testator's  interest  in  a  certain  de- 
scribed estate  operates  as  an  assignment  of  his  interest  as  lessee  in  the 
estate.^*^ 

In  an  assignment  merely  of  a  leasehold  estate  which  is  limited  and 
defined  by  the  original  deed,  an  habendum  clause  is  not  necessary.^" 

§  438.  The  transfer  of  a  lease  by  assignment  may  be  by  indorse- 
ment on  the  back  of  the  lease  or  by  separate  instrument/**  and  in  the 

latter  case  such  instrument,  being  a  transfer  of  an  interest  in  land, 
may  properly  be  recorded;  but  it  will  not  operate  as  constructive  no- 
tice to  a  subsequent  purchaser,  if  it  fail  to  describe  the  premises,  and 
define  the  term,  or  to  contain  language  of  description  by  which  the 
original  lease  can  be  recognized  as  the  thing  transferred.^*^  An  in- 
dorsement upon  the  original  lease  with  reference  to  it  incorporates 
the  description  of  the  premises,  and  the  terms  upon  which  they  are 
to  be  held  into  the  assignment,  and  the  delivery  of  the  lease  makes  ap- 
parent the  intent  to  convey  the  estate.^*^  ISTo  authority  is  necessary 
on  the  point  that  the  expression  "all  my  right,  title  and  interest  in 
and  to  a  certain  indenture  of  lease"  is  ample  to  pass  all  the  interest 
of  the  lessor,  to  the  extent  of  the  lease,  not  only  to  the  premises  therein 
demised,  but  also  to  the  rents  accruing  thereunder.^*^  In  case  the 
lessees  do  not  use  the  word  "assign"  in  the  instrument  executed  by 
them,  but  use  the  word  "sold,"  this  is  equivalent  to  "assign"  and  is 
sufficient  to  effect  a  transfer  of  the  leasehold  estate."^ 

**^  De  Pere  Co.  v.  Reynen,  65  Wis.  "'  Sanders  v.  Partridge,  108  Mass. 

271,  22  N.  W.  761,  27  N.  W.  155.  556;    Keeley  Brewing  Co.  v.  Mason, 

^*^  Martin  v.  Tobin,  123  Mass.  85.  102  111.  App.  381;    Barnes  v.  North- 

"^  Strong  v.  Garfield,  10  Vt.  497.  ern  Trust  Co.,  169  111.  112,  48  N.  E. 

^"Esty    v.    Baker,    48    Me.    495;  31;      Patten     v.     Deshon,     1     Gray 

Cleveland  &c.  R.  Co.  v.  Mitchell,  74  (Mass.)    325;    Blake   v.    Sanderson, 

111.  App.  602.  1  Gray  (Mass.)   332. 

"=  Martindale  v.  Price,  14  Ind.  115.  "'  Cleveland  &c.   R.   Co.   v.   Mitch- 

1"  Sanders  v.  Partridge,  108  Mass.  ell,  74  111.  App.  602. 

556. 


497  BY  LESSEE.  [§   438 

An  assignment  of  a  lease  in  blank  is  a  nullity.  The  affixing  of  a 
hand  and  seal  to  a  piece  of  blank  paper  never  can  be  considered  an 
assignment  by  deed  or  note  in  writing  within  the  requisition  of  the 
statute  of  frauds.  To  allow  the  subsequent  filling  up  of  the  deed  by 
a  third  person,  to  have  relation  back  to  the  time  of  the  sealing  and 
delivery  of  the  blank  paper  in  consequence  of  some  parol  agreement 
of  the  parties,  is  to  open  the  door  to  fraud  and  perjury  and  to  defeat 
the  provisions  of  the  statute. ^*^ 

An  assignment,  just  like  a  deed  in  fee,  must  be  completed  by  de- 
livery and  the  essential  requisite  to  the  validity  of  a  deed  is  that  when 
placed  in  the  hands  of  a  third  party,  it  has  passed  beyond  the  control 
of  the  grantor  for  all  time.  In  case  a  Jury  could  rightly  infer  that 
the  lessee  did  not  part  with  all  control  and  dominion  over  the  lease, 
but  that  he  might  have  the  right  to  recall  the  assignment,  they  would 
be  justified  in  holding  it  did  not  take  effect  as  a  valid  instrument.^ ^"^ 

Where  a  lessee  is  forbidden  to  assign  without  the  consent  of  the 
lessor,  such  consent  must  be  obtained  before  he  can  charge  the  as- 
signee on  the  contract.  If  the  lessee  had  no  authority  to  assign 
the  lease,  or  to  permit  the  assignees  to  occupy  the  premises,  the  as- 
signment tendered  would  have  transferred  no  use  of  the  premises 
for  the  remainder  of  the  term.  If  it  operated  even  as  a  permission 
to  the  assignees  to  occupy,  it  would  for  that  very  reason  have  operated 
as  a  determination  of  the  assignor's  estate.  The  assignees  had  a  right 
to  a  legal  surrender  of  the  premises  for  the  remainder  of  the  term, 
and  not  merely  to  a  transfer  formal  but  valueless. ^^^  Although  such 
a  transfer  without  the  written  consent  of  the  landlord  operates  under 
the  statute  as  a  forfeiture,  that  does  not  render  the  contract  void  be- 
tween the  parties,  and  the  assignee  has  a  right  of  action  against  the 
lessee  for  failing  to  put  him  in  possession.^^^  After  an  assignee  has 
entered  under  an  assignment,  and  occupied  the  premises,  he  is  clearly 
estopped  to  deny  the  validity  thereof  on  the  ground  that  it  was  not 
assented  to  by  the  lessors.  The  terms  of  the  lease  by  which  no  valid 
assignment  could  be  made  without  the  assent  in  writing  of  the  lessors 
was  a  condition  for  the  benefit  of  the  lessors  which  they  might  waive, 
and  they  did  waive  it  by  recognizing  the  assignee  as  their  tenant  and 
receiving  rent  from  him  as  such.  By  such  assignment  and  accept- 
ance of  the  lease,  the  assignee  is  bound  to  the  performance  of  its  con- 

^*' Jackson  v.  Titus,  2  Johns.    (N.  "'Austin     v.     Harris,     10     Gray 

Y.)   430.  (Mass.)   296. 

^^  Canale  v.  Copello,   137  Cal.   22,  '=-  Thompson  v.  Gray,  15  Ky.  L.  R. 

69  Pac.  698;   Kenney  v.  Parks,  125  783, 
Cal.  146,  57  Pac.  772. 

Jones  L.  &  T.— 32 


§§   439,   440]  ASSIGXMEXT   OF  LEASES.  498 

ditions,  and  his  liability  for  rent  is  to  be  governed  by  the  terms  of  the 
lease,  and  not  restricted  to  actual  occupation.  ^^^ 

§  439.  A  leasehold  estate,  created  by  an  instrument  under  seal, 
may  be  assigned  by  an  instrument  not  under  seal.^^*  The  rule  that  an 
instrument  under  seal  can  be  assigned  only  by  an  instrument  under 
seal,  applied  to  an  assignment  of  the  lease  itself,  as  a  contract,  is  well 
settled  at  law;  and  a  lease,  being  under  seal,  could  only  be  assigned 
by  an  instrument  under  seal.^^^  But  this  objection  is  not  decisive,  be- 
cause a  leasehold  estate  can  be  transferred  in  other  ways  than  by  an 
assignment  of  the  instrument  by  which  it  is  created.  A  lease,  by  what- 
ever form  of  instrument  it  is  made,  conveys  to  the  lessee  an  estate  or 
interest  in  the  lands.  He  may  in  turn  convey  to  another  any  sub- 
ordinate interest,  or  his  entire  estate  in  any  appropriate  form,  without 
regard  to  the  form  in  which  he  acquired  his  own  title.  The  leasehold 
estate  may  be  transferred  by  devise,  by  sale  on  execution  as  a  chattel, 
or  by  sale  by  an  administrator  as  personal  assets.  In  all  these  cases 
the  purchaser  becomes  bound  to  the  lessor  to  pay  the  rent  and  per- 
form the  covenants  that  run  with  the  land,  because  the  law  imposes 
that  obligation  upon  him  by  reason  of  his  succession  to  the  estate  of 
the  lessee.  The  same  result  follows  from  any  transfer  by  the  lessee 
of  his  entire  estate.  A  seal  is  not  essential  to  such  a  transfer,  even  of 
a  lease  for  more  than  seven  years,  No  written  instrument  is  necessary 
except  to  satisfy  the  statute  of  frauds.  The  real  question  in  every 
case  is  whether  the  instrument  is  sufficient  to  satisfy  the  statute  of 
frauds.^^* 

§  440.  That  the  English  statute  of  frauds  extends  to  agreements 
for  the  assignment  of  a  lease  was  settled  in  early  cases,^^^  and  the 
same  result  has  been  reached  in  the  United  States  without  regard  to 
minor  variations  in  the  phraseology  of  the  statutes  here.^^*    Contracts 

"^  Blake    v.     Sanderson,    1    Gray  v.  Wheatley,  2  Luz.  Leg.  Reg.  (Pa.) 

(Mass.)  332.  37. 

^'^*  Keeley  Brewing  Co.  v.   Mason,  ^"  Wood    v.    Partridge,    11    Mass. 

102  111.  App.  381;   Barnes  v.  North-  488;      Brewer     v.     Dyer,     7     Cush. 

ern  Trust  Co.,  169  111.  112,  48  N.  E.  (Mass.)   337;  Bridgham  v.  Tileston, 

31;   Barrett  v.  Trainor,  50  111.  App.  5  Allen    (Mass.)    371. 

420;    Bordereaux  v.  Walker,  85  111.  ""Sanders  v.  Partridge,  108  Mass. 

App.  86;    Sanders  v.  Partridge,  108  556. 

Mass.  556;    Stillman  v.   Harvey,  47  '"Anonymous,    Vent.    361;    Poult- 
Conn.    26;     Warren    v.     Leland,    2  ney  v.  Holmes,  1  Stra.  405;  Browne 
Barb.  (N.  Y.)  613;  Holliday  v.  Mar-  on  St.  of  Frauds,  §  320. 
shall,  7  Johns.  (N.  Y.)  211;  Troxell  "^Kingsley   v.    Siebrecht,    92    Me. 


499  BY  LESSEE.  [§■  4-iO 

for  the  sale  of  leasehold  interests,  though  such  interests  are  technically 
only  chattel  interests,  are  within  the  mischief  intended  to  be  guarded 
against  by  the  statute.  There  are  in  many  states  leases  of  land  to  be 
built  upon,  running  for  long  periods  with  covenants  for  renewal, 
which  are  of  great  value.  A  court  would  therefore  hesitate  to  hold 
that  a  statute  of  frauds  did  not  extend  to  contracts  for  the  sale  of 
leasehold  interests.^^^  If  there  be  a  verbal  contract  between  parties 
for  an  assignment  of  the  unexpired  term  of  a  lease  for  life,  such 
contract  is  within  the  statute  of  frauds  for  two  reasons.  First,  be- 
cause it  is  an  attempted  assignment  of  a  leasehold  interest,  the  term 
being  for  the  life  of  the  original  lessor,  and  second,  because  it  was 
not  performable  in  one  year.^*^" 

It  has  been  argued  that  a  person  having  orally  agreed  with  a  lessee 
to  take  his  place  in  a  lease — having  entered  into  possession  and  hav- 
ing paid  rent  in  checks, — is  estopped,  when  sued  by  the  landlord 
for  rent,  from  showing  there  was  no  assignment  of  the  lease  in  writ- 
ing.^^^  But  an  estoppel  arises  only  where  one  has  led  another  to 
act  upon  the  assumption  of  the  existence  of  a  certain  state  of  facts, 
and  where  the  latter  would  be  prejudiced  if  the  other  party  were 
allowed  afterwards  to  show  that  the  facts  were  otherwise  than  as 
he  had  represented  them.  Nothing  of  this  kind  arises;  the  landlord 
has  entered  into  no  new  contract,  undertaken  no  obligation,  nor 
done  anything  in  consequence  of  it.  The  original  lessors  remain 
liable  on  the  lease  for  the  rent  for  the  whole  of  the  term  and,  if 
rent  is  not  paid,  the  landlord  has  a  prompt  and  efficacious  remedy 
by  which  he  can  recover  possession  of  the  premises.  It  does  not 
operate  to  his  prejudice  or  injury  to  show  that  the  occupant  did 

not  acquire  any  valid  right  or  title  to  the  estate  created  by  the 
lease.^^2 

23,  42  Atl.  249;    Smith  v.  Smith,  9  ^^^ Tief enbriin    v.    Tiefenbrim,    65 

Ky.  L.  R.  100;  Sanders  v.  Partridge,  Mo.  App.  253;  Nally  v.  Reading,  107 

108  Mass.  556;  Durand  v.  Curtis,  57  Mo.  350,   17  S.  W.  978;    Johnson  v. 

N.  Y.  7;  Welsh  v.  Schuyler,  6  Daly  Reading,  36  Mo.  App.  306. 

(N.  Y.)    412;    Potter  v.  Arnold,   15  ^"Carter    v.    Hammett,    12    Barb. 

R.  I.  350;  Briles  v.  Pace,  13  Ired.  L.  (N.    Y.)     253,    s.    c.    18    Barb.    608; 

(N.  Car.)  279;  Johnson  v.  Reading,  Chicago    Attachment    Co.    v.    Davis 

36  Mo.  App.   306;    Hunt  v.   Coe,  15  &c.   Co.,   33    111.   App.    362,    reversed 

Iowa  197;   Chicago  Attachment  Co.  in  142  111.  171,  31  N.  B.  438. 

V.   Davis   &c.   Co.,    142    111.    171,    31  ^"^ Welsh  v.  Schuyler,  6  Daly   (N. 

N.  E.  438,  reversing  33  111.  App.  362.  Y.)    412. 

^=»  Potter  V.  Arnold,  15  R.  I.  350. 
5  Atl.  379. 


§   441]  ASSIGNMENT  OF  LEASES.  500 

§  441.     The  validity  of  a  parol  assignment  of  a  valid  parol  lease 

was  raised  in  England  at  the  Lent  Assizes  in  the  year  1808. 
Shepherd,  Sergeant,  contended  that  though  there  might  be  a  good 
parol  demise  for  a  term  under  three  years,  yet  no  lease  for  any 
period,  however  short,  could  be  assigned,  unless  by  deed  or  writing,, 
signed  by  the  party  assigning,  or  his  agent  thereunto  lawfully  author- 
ized. On  the  other  side  Best,  Sergeant,  argued  that  the  leases  men- 
tioned as  requiring  to  be  assigned  by  writing,  must  be  such  leases 
as  are  required  to  be  created  by  deed  or  writing.  "As  a  lease  from 
year  to  year  could  be  originally  made  by  parol,  there  was  no  reason 
why  it  might  not  be  assigned  by  parol,  and  the  words  of  the  statute 
would  bear  this  interpretation  which  was  clearly  consistent  with 
its  general  import."  But  Sir  A.  M'Donald,  C.  B.,  held  that  the 
assignment  was  void  for  not  being  by  deed  or  note  in  writing;  and 
therefore  nonsuited  the  plaintiff. ^^'^  In  this  country,  however,  it 
has  been  held  that  a  tenancy  held  by  parol  may  be  transferred  by 
parol.  The  position  that  a  tenancy  from  year  to  year  could  only  be 
conveyed  or  surrendered  by  a  contract  in  writing  and  that  a  parol 
agreement  for  its  sale  or  surrender  was  void  under  the  statute  of 
frauds  was  thought  untenable.  "The  tenancy  was  from  year  to  year, 
and  existed  only  in  parol,"  said  the  court,  "and  if  valid  in  him,  it 
would  be  strange  if  he  cojild  not  transfer  it  in  the  same  way."^''* 
In  another  American  case  the  doctrine  was  laid  down  generally 
that  a  lease  for  a  term  less  than  the  statutory  period  for  parol  leases, 
whether  written  or  not,  may  be  surrendered  or  transferred  by  oral 
agreement.  "What  greater  mischief  there  can  be  in  a  verbal  sur- 
render or  transfer,"  says  Chief  Justice  Gibson,  "than  there  is  in 
the  verbal  constitution  of  a  lease,  has  not  been  shown  and  it  is  not 
to  be  supposed  that  the  legislature  intended  to  establish  a  distinction 
without  a  reason  for  it.  .  .  .  The  two  English  decisions  do  not 
bind  us  as  precedents ;  and  they  are  too  contracted  to  bind  us  by  their 
spirit.  ...  I  take  it,  therefore,  a  lease  for  less  than  three  years, 
whether  written  or  not,  may  be  surrendered  or  transferred  by  an 
oral  expression  of  assent."^ "^ 

There  is  authority  for  the  view  that  part  performance  takes  a 
parol  contract  of  assignment  out  of  the  statute  of  frauds,  although 
such  a  doctrine  has  been  restricted  in  some  jurisdictions  to  suits 

"^Dotting  V.  Martin,  1  Camp.  317,         ^"^  Ross  v.  Schneider,  30  Ind.  423; 
followed  in  Preece  v.  Corrie,  5  Bing.     Peters  v.  Barnes,  16  Ind.  219. 
24.  ^''^McKinney   v.   Reader,   7   Watts 

(Pa.)   123. 


501  BY  LESSEE.  {§   443 

in  equity.  ^^^  Granting  that  the  statute  of  frauds  requires  an  as- 
signment of  a  lease  to  be  in  writing,  irrespective  of  the  duration  of 
the  term,  this  cannot  apply. where  the  contract  has  been  fully  ex- 
ecuted by  the  payment  of  the  consideration  on  the  one  side,  and  the 
delivery  and  retention  of  possession  on  the  other.  The  lessor,  who 
has  recognized  its  validity,  which  the  parties  themselves  have  never 
questioned,  cannot  set  up  the  statute  against  the  lessee  and  still  less 
against  his  surety.^®^ 

§  442.  Where  one  other  than  the  lessee  occupies  leased  premises 
during  the  continuation  of  the  term  and  pays  rent,  he  is  prima  facie 
in  as  assignee  of  the  term.^"^  While  an  assignee  of  a  lease  is  liable 
on  the  covenants  therein  only  by  reason  of  privity  of  estate  and  not 
by  reason  of  his. occupation  of  the  premises,  an  assignment  may  some- 
times be  inferred  in  fact  by  the  occupation  of  the  assignee.  This 
was  done  in  a  case  where  premises  leased  b'y  one  partner  were  oc- 
cupied by  his  firm,  which  was  held  liable  on  the  covenants  in  the 
lease.^®^  After  a  lessee  has  gone  into  possession  of  the  demised 
premises,  the  occupation  of  them  by  a  stranger  raises  a  presumption 
that  he  is  an  assignee  of  the  term,  and  makes  him  prima  facie 
liable  for  rent  on  the  privity  of  estate. ^'^" 

It  may  be  stated  as  a  general  rule  that  where  a  person  other  than 
the  lessee  enters  upon  and  occupies  leased  premises  or  pays  the  rent, 
the  law  infers  an  assignment  to  him  of  the  lease.  But  this  pre- 
sumption may,  in  either  case,  be  rebutted  by  proof  that  there  never 
was,  in  fact,  such  an  assignment,  or  that  the  instrument  of  assign- 
ment was  invalid.^'^^  The  fact  of  possession  is  sufficient  evidence 
in  the  first  instance  of  an  assignment  when  a  suit  for  rent  is  brought 
against  an  alleged  assignee.  The  fact  of  an  assignment  is  a  transac- 
tion between  the  defendant  and  the  lessee,  of  which  the  plaintifE 

'^Chicago  Attachment  Co.  v.  Da-  Welsh  v.  Schuyler,  6  Daly   (N.  Y.) 

vis  &c.  Co.,  142  111.  171,  31  N.  E.  438,  412;      Quackenboss     v.     Clarke,     12 

reversing  33  111.  App.  362.  Wend.    (N.  Y.)    555;   Astor  v.  Lent, 

"'Wiley,     Estate     of,     12     Phila.  6  Bosw.   (N.  Y.)   612,  617;  Mason  v. 

(Pa.)  152;  Dewey  v,  Payne,  19  Neb.  Breslin,   40    How.   Pr.    (N.   Y.)    436, 

540,  26  N.  W.  248.  442;  Frank  v.  New  York  &c.  R.  Co., 

"^Ecker  v.  Chicago  &c.  R.  Co.,  8  122   N.   Y.   197,   215,   25   N.  E.   332; 

Mo.  App.  223.  Wittman  v.  Milwaukee  &c.  R.   Co., 

"°Guinzburg    v.    Claude,    28    Mo.  51   Wis.   89,  8   N.  W.   6;    Dickinson 

App.  258.                                                     '  Co.  V.   Fitterling,   69  Minn.   162,   71 

""Williams  v.  Woodard,  2  Wend.  N.  W.   1030;    Ecker  v.   Chicago  &c. 

(N.  Y.)   487.  R.  Co.,  8  Mo.  App.  223. 

"^  Cross   V.   Upson,    17   Wis.    618; 


§'  442]  ASSIGNMENT  OF  LEASES.  503 

is  not  cognizant,  but  the  defendant  is.  There  is  no  hardship,  there- 
fore, in  concluding  him  by  his  possession,  unless  he  discloses  the  true 
state  of  his  title. "^  It  is  enough  for  .the  plaintiff  to  give  general 
evidence  from  which  the  assignment  may  be  inferred;  payment  of 
rent  being  prima  facie  evidence  of  an  assignment  of  the  whole  term.^^^ 
If  there  be  no  assignment,  the  defendant  is  not  liable  to  the  lessor, 
and  under  the  statute  of  frauds  an  assignment  must  be  in  writing 
or  it  is  void.  But  as  the  law  infers  an  assignment  from  certain 
facts  proved,  the  inference  must  be  of  a  valid  operative  assignment, 
such  an  one  as  was  sufficient  to  transfer  the  term.  It  is  incumbent 
on  the  defendant  to  prove  either  that  there  was  no  assignment,  or 
that  it  was  one  void  in  law.^^^  The  presumption  of  law,  where  a 
man  is  shown  to  be  in  possession  of  leasehold  premises,  without 
anything  more,  is  that  he  is  in  as  assignee  of  the  original  tenant."^ 
Where  heirs  of  a  lessee  were  sued  for  rent  of  the  leased  premises, 
it  was  held  that  the  defendants  being  in  possession,  the  law  would 
refer  that  possession  to  a  rightful  rather  than  to  a  wrongful  title 
by  supposing  the  defendants  to  be  privy  to  the  term  granted  to 
their  father,  the  original  lessee ;  and  if  their  possession  was  referable 
to  some  other  title,  it  was  for  them  to  show  it,  for  that  must  be  a 
matter  lying  within  their  own  knowledge.^^® 

The  presumption  of  a  valid  assignment  could  be  rebutted  by  show- 
ing the  occupant  of  the  premises  held  as  under-tenant  without  even 
a  bare  knowledge  of  the  original  lease.  But  after  the  lessee  de- 
serts the  building  and  abandons  the  lease,  the  sub-tenant's  continued 
occupation  of  the  premises  with  the  consent  of  the  owner  and  pay- 
ment of  rent  to  him  constitutes  a  surrender  of  the  original  lease.^'^^ 
The  presumption  of  an  assignment  could  also  be  overthrown  by  show- 
ing that  the  occupant  never  told  the  lessors  he  was  holding  under 
the  lease,  did  not  mislead  them  in  any  way  to  their  injury,  and  that 
a  written  assignment  was  never  made  effectual  by  delivery,^^^  The 
New  York   Court  of  Appeals  has  intimated  that  the  cases  might, 

"' Quackenboss      v.      Clarke,      12  "'Acker  v.  Witherell,  4  Hill    (N. 

Wend.    (N.   Y.)    555;    Armstrong  v.  Y.)  112. 

Wheeler,   9   Cow.    (N.  Y.)    88;    Wil-  ""Page  v.  McGlinch,  63  Me.  472; 

liams  v.  Woodard,  2  Wend.   (N.  Y.)  Doe  v.  Murless,  6  M.  &  S.  110;   Doe 

487;    Bedford  v.  Terhune,  30  N.  Y.  v.  Williams,  6  B.  &  C.  41,  13  E.  C. 

453.     See  also  Walsh  v.  Martin,  69  L.  31. 

Mich.  29,  37  N.  W.  40.  '""  Snyder  v.  Parker,  75  Mo.  App. 

"^2  Phillips  Evidence,  150.  529. 

"*  Bedford   v.    Terhune,   30   N.    Y.  *'«  Canale  v.  Copello,  137   Cal.  22,j 

453.  69  Pac.  698. 


503  BY  LESSEE.  [§   443 

perhaps,  be  questioned  in  so  far  as  they  may  be  said  to  authorize 
proof  of  a  wrongful  entry  in  rebuttal  of  a  presumed  assignment.^^^ 
But  the  suggested  limitation  has  no  application  in  a  case  where  evi- 
dence is  offered  to  show  an  occupation  conjointly  with  one  of  the 
original  lessees  and  supposedly  with  his  permission.  In  that  case 
the  occupant  has  a  right  to  go  to  the  jury  on  the  question  of  fact 
whether  or  not  he  had  an  assignment  of  the  lease,  and  assumed  any 
of  its  obligations,^®'' 

That  an  assignment  of  a  lease  causes  a  forfeiture  does  not  pre- 
vent the  usual  inference  arising  from  occupation.  There  is  no 
reason  why  a  presumption  of  an  assignment  would  not  arise,  even 
in  a  proceeding  to  enforce  the  forfeiture.  The  fact  that  an  assign- 
ment will  forfeit  the  lease  is  a  strong  motive  for  concealing  the  fact 
of  assignment  and  the  character  of  the  possession  of  the  assignee. 
Thus  the  existence  of  such  a  condition  of  forfeiture  in  the  lease  is, 
if  anything,  an  additional  reason  why  a  third  person  in  possession 
should  be  presumed  to  be  an  assignee  of  the  lessee  and  compelled 
to  explain  the  character  of  his  possession,^^^ 

§  443.  A  receiver  appointed  by  a  court  to  take  charge  of  a  lessee's 
property  does  not  thereby  become  an  assignee  of  the  term."-  A  re- 
ceiver is  merely  a  ministerial  officer  of  the  court,  or,  as  he  is  some- 
times called,  the  hand  of  the  court.  The  title  to  the  property  does 
not  change  upon  an  appointment  of  a  receiver;  and  if  he  is  required 
to  take  property  into  his  custody,  such  custody  is  that  of  the  court."^ 
Speaking  of  a  decree  appointing  receivers  of  a  railway  company, 
Mr,  Justice  Wells  said:  "It  had  no  effect  to  change  the  title,  or 
create  any  lien  upon  the  property.  Its  purpose,  like  that  of  an  in- 
junction pendente  lite,  was  merely  to  preserve  the  property  until  the 
rights  of  all  parties  could  be  adjudged.  The  receivers  are  officers 
of  the  court  for  this  purpose  and  act  under  its  direction  and  con- 
^j.q|  "184     gQ^  Qj^  principle,  the  law  seems  to  be  that  if  a  receiver  of 

"'Frank  v.  New  York  &c.  R.  Co.,  R.  Co.  v.  Humphreys,  145  U.  S.  82, 

122  N.  Y.  195,  215,  25  N.  E.  332.  97,    12    S.    Ct.    787.      Contra   United 

""Day  V.   Greenebaum,   31   N.   Y.  States  Trust  Co.  v.  Wabash  &c.  R. 

S.  610,  82  Hun  533.  Co.,  150  U.  S.  287,  14  S.  Ct.  86. 

"'Dickinson  Co.  v.  Fitterling,  69  "^  Union    Bank    v.    Kansas    City 

Minn.  162,  71  N.  W.  1030.  Bank,  136  U.  S.  223,  10  S.  Ct.  1013; 

"-  Bell     V,     American     Protective  Thompson   v.    Phenix    Ins.    Co.,    136 

League,  163  Mass.  558,  40  N.  E.  857;  U.  S.  287,  297,  10  S.  Ct.  1019. 

Gaither  v.  Stockbridge,  67  Md.  222,  '"*  Ellis  v.  Boston  &c.  R.  Co.,  107 

9  Atl.  632,  10  Atl.  309;   Quincy  &c.  Mass.  1,  28, 


§    444]  ASSIGNMENT  OF  LEASES.  504 

an  insolvent  corporation  takes  possession  of  its  leasehold  estates,  he 
is  liable  only  for  a  reasonable  rent  during  the  time  that  he  retains 
possession;  that  he  does  not  become  an  assignee  of  the  term  and  is 
not  liable  on  the  covenants  of  the  lease.^*^ 

In  New  York  a  receiver  of  an  insolvent  corporation  has  vested 
in  him  by  statute  the  title  of  the  insolvent,  so  there  are  cases  in  that 
state  in  which  it  is  asserted  that  there  is  no  difference  between  an 
assignee  and  a  receiver  who  takes  possession  of  the  leasehold  prem- 
ises.^^^ 

§  444.  Where  a  sheriff,  under  an  execution,  sells  a  term  for  years, 
it  operates  as  an  assignment  at  law,  and,  when  he  sells  a  term  in  pos- 
session of  the  debtor,  he  can  put  a  vendee  in  possession.^®'^  Upon 
such  a  sale,  however,  he  must  execute  an  assignment  of  the  lease, 
in  writing  to  the  purchaser,  and  if  he  merely  puts  the  execution 
creditor  in  possession,  the  debtor  may  recover  it  again  in  eject- 
ment. ^^^  It  has  been  held  that  it  requires  only  a  memorandum 
of  the  sale,  signed  by  the  officer  making  the  sale,  to  satisfy  the  statute,. 
and  his  return  may  constitute  a  sufficient  memorandum,^^^  even 
though  made  subsequently  to  the  sale.^^" 

A  court  will  not  take  jurisdiction  in  equity  to  compel  a  lessee, 
whose  term  for  years  has  been  sold  under  an  execution,  to  deliver 
up  to  the  purchaser  the  counter-parts  of  his  lease  and  sub-leases 
which  are  recorded.  An  assignment  and  sub-leases  made  by  the 
lessee  subsequently  to  the  sale  are  void  and  do  not  constitute  a  cloud 
upon  the  title  affording  ground  for  relief  in  equity.  The  purchaser 
at  the  execution  sale  stands  in  the  position  of  an  assignee  in  law  of 
the  term  for  years,  with  substantially  the  same  right  as  if  it  had  been 
voluntarily  assigned  to  him.  His  remedy  at  law  to  enforce  his  rights 
as  such  assignee  is  plain,  adequate  and  complete.^"^  An  execution 
purchaser  of  a  leasehold  interest  must  take  it,  if  at  all,  subject  to 
all*the  conditions  of  the  lease,  whether  the  same  are  recorded  or  not. 

'^Bell    v.    American    &c.    League,  '^  Doe  v.  Jones,  9  M.  &  W.  372; 

163  Mass.  558,  40  N.  E.  857.  Doe  v.  Brawn,  5  B.  &  Aid.  243. 

^^  Attorney-General   v.   Life  &   F.  "'  Sanborn     v.     Chamberlin,     101 

Ins.  Co.,  4  Paige  (N.  Y.)  224;  Booth  Mass.  409;  Remington  v.  Linthicum, 

v.  Clark,  17  How.   (U.  S.)   322,  331.  14   Pet.    (U.   S.)    84,   92;    Hanson  v. 


"'Taylor  v.  Cole,  3  Term  R.  292 
McNeil  V.  Ames,  120  Mass.  481 
Joslin   v.   Ervien,   50   N.   J.   L.    39 


Barnes,  3  Gill  &  J.  (Md.)  359; 
Barney  v.  Patterson,  6  H.  &  J.  (Md.) 
182. 


Borland's  Appeal,  66  Pa.  St.  470.  ""Freeman  on  Executions,  §  299. 

"1  McNeil  V.  Ames,  120  Mass.  481. 


J. 


505  BY  LESSEE.  [§■  445 

But  he  may  disclaim  all  interest  tiiider  his  purchase  and  avoid 
further  liability  on  the  covenants  of  the  lease.^^^ . 

A  purchaser,  on  foreclosure  of  a  mortgage  on  a  leasehold,  becomes 
an  assignee  of  the  lease  and  therefore  liable  on  the  covenant  during  his 
enjoyment  of  the  demised  premises.^^^ 

These  results  do  not  follow  unless  there  has  been  a  sale  effecting 
a  change  in  the  ownership  of  the  leasehold.  So  a  decree  of  sale  of 
a  leasehold  on  a  lien  judgment  does  not  invest  the  lienor  with  a 
right  of  entry  or  with  the  legal  title  so  as  to  make  him  liable  on  the 
covenants  in  the  lease.^®*  Moreover,  it  has  been  held  that  a  pur- 
chaser at  a  chancery  sale  of  an  unexpired  term  of  a  leasehold  is 
not  chargeable  with  the  contract  rental  for  the  balance  of  the  term. 
The  theory  of  the  court  was  that  money  paid  by  the  purchaser  should 
be  applied  as  rent  and  the  original  lessee  should  make  up  the  bal- 
ance. In  stating  the  reasons  for  this  decision  the  court  said  that 
"The  contrary  suggestion  carries  with  it  its  own  refutation."^^^ 

§  445.  There  is  a  wide  distinction  in  law  between  an  assignee  of 
a  lease  and  a  sub-tenant.  The  former  is  personally  liable  to  the  land- 
lord for  all  the  covenants  and  conditions  imposed  upon  the  lessee, 
while  the  latter  is  liable  only  to  the  lessee,  who  is  alone  responsible 
to  the  landlord.^^®  An  underlease  vests  only  a  partial  estate  in  the 
second  lessee,  a  reversion  being  left  in  his  lessor;  whereas,  an  as- 
signment transfers  the  whole  interest  of  the  first  lessee  to  the  as- 
signee. The  test  is  whether  the  grant  leaves  a  reversionary  inter- 
est in  the  assignor  or  operates  to  transfer  his  entire  term.  The 
essential  nature  of  the  conveyance  is  not  effected  by  the  particular 
words  employed,  and  though  the  instrument  purport  to  be  a  lease- 
or  demise,  it  may  still  be  an  assignment.^®^  When  a  lessee  assigns 
his  interest  in  the  whole  or  a  part  of  the  demised  premises  for  the 
residue  of  the  unexpired  term,  the  assignee  is  substituted  in  place 
of  the  original  lessee  as  tenant.  But  where  the  demised  premises 
are  let  for  a  part  only  of  the  unexpired  term,  the  new  tenant  is  only 
a  sub-lessee,  and  is  not  a  tenant  to  the  landlord. ^^^ 

"^  Snowden     v.     Memphis     Park  ™  Dartmouth    College    v.    Clough, 

Ass'n,  7  Lea   (Tenn.)   225.  8   N.    H.    22;    Sansing   v.    Risinger, 

''''State  V.  Martin,  14  Lea  (Tenn.)  2  Tex.  App.  Civ.  Cas.,  §  713;  Krider 

92.  v.  Ramsay,  79  N.  Car.  354. 

"*  Merchants'  Ins.  Co.  v.  Mazange,  "^  Constantine  v.  Wake,  1  Sweeny 

22  Ala.  168.  (N.  Y.)    239. 

"=  Tradesman   Pub.    Co.   v.   Knox-  "'  Lee   v.   Payne,   4   Mich.   106. 
ville  &c.  Co.,  95  Tenn.  634,  32  S.  W. 
1097,  31  L.  R.  A.  593. 


§    445]  ASSIGNMENT  OF  LEASES.  506 

It  is  well  settled  that  the  common  law  gives  the  lessor  no  right 
of  action  on  any  of  the  covenants  of  the  original  lease  against  the 
sub-tenant  or  under-lessee  because  there  is  no  privity  of  contract 
between  the  lessor  and  the  sub-lessee  and  because  there  is  no  privity 
of  estate.^  ^®  A  sub-lessee  is  not  in  a  general  sense  the  tenant  of  the 
original  lessor.  ^"°  There  is  no  privity  between  the  landlord  and 
sub-tenant,  arising  merely  from  that  relation  as  will  subject  the  sub- 
tenant to  liability  for  the  debt  of  the  tenant  for  rent.^''^  At  com- 
mon law  a  landlord  could  not  sue  a  sub-lessee  upon  the  covenants 
of  the  original  lease,  and  a  statute  allowing  a  landlord  to  enforce 
his  lien  by  attachment  against  the  sub-tenant,  has  been  held  not 
to  change  the  common  law  rule  about  suing  on  covenants.^"^ 

The  Missouri  statute  gives  a  lien  and  attachment  against  an 
under-tenant  or  sub-lessee  as  well  as  against  the  original  lessee  and 
to  that  extent  the  common  law  is  repealed,^'''*  but  the  statute  cannot 
be  fairly  construed  to  give  the  landlord  the  right  to  sue  the  sub-lessee 
in  an  action  at  law  upon  the  covenants  of  the  lease  to  the  tenant 
when  no  lien  is  sought  against  the  crop  growTi  on  the  premises  and 
no  right  of  attachment  exists.  It  does  not  follow  that  because  a 
lien  or  attachment  is  given  against  a  sub-lessee  that  an  action  at  law 
is  given  in  all  cases. ^"^ 

In  case  the  original  lessee  is  insolvent  and  unable  to  pay  the  rent, 
the  question  then  arises  whether  the  under-lessee  should  be  per- 
mitted to  enjoy  the  profits  and  possession  of  the  estate  without  ac- 
counting for  the  rent  to  the  original  lessor.  There  would  be  no 
remedy  at  law.  But  courts  of  equity  will  relieve  the  lessor  and  will 
direct  a  payment  of  rent  to  the  lessor  upon  a  bill  making  the  original 

1"' Robinson    v.    Lehman,    72    Ala.  ^'Gibson    v.    Mullican,    58    Tex. 

401;    St.   Joseph   &c.   R.   Co.   v.    St.  430;    Harvey    v.    McGrew,    44    Tex. 

Louis   &c.   R.   Co.,   135   Mo.   173,   36  412;   Krider  v.  Ramsay,  79  N.  Car. 

S.    W.    602;    Grundin   v.    Carter,    99  354. 

Mass.  15;  Ashley  v.  Young,  79  Miss.  ="=  St.    Joseph    &c.    R.    Co.    v.    St. 

129,  29  So.   822;    McFarlan  v.  Wat-  Louis   &c.    R.   Co.,   135   Mo.   173,   36 

son,  3  N.  Y.  286;  Holford  v.  Hatch,  S.  W.  602. 

1   Doug.    183,   187.  ^''^Rev.    St.    1899,    §§    6376,    6384, 

^"''Gray    v.    Rawson,    11    111.    527;  6388. 

Giddings  v.  Felker,  70   Tex.  176,   7  ""*  Hicks   v.    Martin,   25    Mo.   App. 

S.   W.    694;    2    Taylor   on   Landlord  359;    Hulett    v.    Stockwell,    27    Mo. 

and    Tenant    (8th    ed.),    §    448;    1  App.    328;    Garroutte   v.    White,   92 

Woodfall  on  Landlord  and  Tenant,  Mo.  237. 

p.  265;  1  Washburn  Real  Prop.  (5th  =»' St.    Joseph    &c.    R.    Co.    v.    St. 

ed.),    p.    546,    §    5;    Williams    Real  Louis  &c.   R.   Co.,   135   Mo.   173,   36 

Prop.,  336.  S.  W.  602. 


507  BY  LESSEE.  [§   446 

lessee  and  the  under-tenant  parties.  For  if  the  original  lessee  were 
compelled  to  pay  the  rent,  he  would  have  a  remedy  over  against  the 
under-tenant.^"^ 

§  446.  An  underlease  for  the  whole  term  is  an  assignment.  Tech- 
nical terms  or  special  words  are  not  necessary  to  an  assignment; 
any  language  which  shows  the  intention  of  the  parties  to  transfer 
the  property  from  one  to  the  other  is  sufficient.  The  form  of  the  in- 
strument being  immaterial,  if  it  has  the  legal  effect  to  pass  to  another 
the  lessee's  interest  in  the  whole  or  in  any  part  of  the  demised  prem- 
ises for  his  entire  term,  or  the  remainder  of  his  term,  it  is  an  as- 
signment.^"^ Although  by  the  under-lease,  a  rent  exceeding  the  origi- 
nal rent  is  reserved,  and  it  is  expressly  stipulated  that  the  so-called 
under-tenant  shall  hold  as  tenant  of  his  grantor,  he  is  nevertheless 
in  law  the  tenant  of  the  original  lessor.^°^  If  a  lessee,  by  any  instru- 
ment whatever,  whether  reserving  conditions  or  not,  parts  with  his 
entire  interest,  he  has  made  a  complete  assignment;  if  he  has  trans- 
ferred all  his  interest  in  a  part  of  the  premises  he  has  made  an  as- 
signment pro  tanto.^^^  A  sub-tenant  is  one  who  leases  all  or  a  part 
of  rented  premises  from  the  original  lessee  for  a  term  less  than  that 
held  by  the  latter,  and  in  that  case  the  lessee  retains  a  reversionary 
interest.  In  such  cases  at  common  law,  a  sub-tenant's  property  was 
subject  to  distress,  while  he  was  not  liable  on  the  contract  between 
lessor  and  lessee.^"  There  is  a  diversity  between  the  whole  estate 
in  part,  and  part  of  the  estate  in  the  whole  or  of  any  part.^"     The 

^'^'l   Story's   Eq.    687;    Forrest   v.  2   Ashm.    (Pa.)    131,  138;    Langford 

Durnell,  86  Tex.  647,  26  S.  W.  481.  v.    Selmes,    3    Kay    &    J.    220,    229; 

'"^  Hicks  V.  Downing,  1  Ld.  Raym.  Palmer  v.  Edwards,  Doug.  187,  n.; 

99;    Beardman  v.  Wilson,  L.   R.,   4  Doe  v.  Bateman,  2  B.  &  Aid.  168; 

C.   P.   57;    Bedford  v.   Terhune,   30  Pluck  v.  Digges,  5  Bligh  (N.  S.)  31, 

N.  Y.  453;  Boston  &c.  R.  Co.  v.  Bos-  65,  Cro.  Jac,  411;   Com.  Dig.,  Debb, 

ton  &c.  R.  Co.,  65  N.  H.  393,  452,  23  E.     But  see  Post  v.  Kearney,  2   N. 

Atl.   529;    Trustees   &c.   v.   Streeter,  Y.    394;     Martin    v.    O'Conner,     43 

64  N.  H.  106,  5  Atl.  845;  Dartmouth  Barb.  (N.  Y.)  514,  522. 

College  V.  Clough,  8  N.  H.  22,  29.  ^^o  Wheeler    v.    Hill,    16    Me.    329; 

="'Wollaston  v.  Hakewill,  3  M.  &  Krider  v.  Ramsay,  79  N.  Car.  354; 

G.   297,  322,  42   E.   C.   L.  161;    Par-  Forrest  v.  Durnell,  86  Tex.  647,  26 

menter   v.    Webber,    8    Taunt.    593;  S.    W.    481;    Dartmouth    College    v. 

Bac.  Abr.  Leases  I,  3.  Clough,  8  N.  H.  22;  1  Chitty's  PI.  36. 

'•"•Woodhull   v.   Rosenthal,    61   N.  Contra.    Fulton    v.    Stuart,    2    Ohio 

Y.  382,  391;  Bedford  v.  Terhune,  30  215. 

N.   Y.   453,   457;    Boston  &c.   R.   Co.  ="  McNeil    v.    Kendall,    128    Mass. 

V.  Boston  &c.  R.  Co.,  65  N.  H.  393,  245. 
452,   23   Atl.    529;    Lloyd   v.   Cozens, 


§•   446]  ASSIGNMENT   OF  LEASES.  o08 

distinction  between  an  assignment  and  a  sub-lease  depends  solely  upon 
the  quantity  of  interest  which  passes  and  not  upon  the  extent  of  the 
premises  transferred.  So  the  transfer  of  part  of  the  premises  for 
the  entire  term  is  an  assignment  and  not  a  sub-lease.^^^ 

Where  a  tenant  at  will  from  year  to  year  lets  a  portion  of  the 
premises  held  by  him  to  another  as  his  tenant  at  will,  the  latter  is 
an  under-tenant  and  not  an  assignee.  And  the  same  result  will  fol- 
low although  the  under-tenant  becomes  a  tenant  from  year  to  year 
by  continued  occupation  and  payment  of  rent;^^^  he  would  not  be 
technically  an  assignee  because  the  first  tenant  had  no  assignable 
interest.^^* 

But  it  is  also  well  settled  that  the  same  instrument  may  in  law 
create  an  assignment  of  the  term,  as  between  the  original  lessor  and 
the  assignee,  and  also  the  relation  of  landlord  and  tenant  between 
the  parties  to  the  second  demise.  As  between  the  original  lessee 
and  his  lessee,  even  though  the  original  lessee  demises  the  whole 
term,  if  the  parties  intend  a  lease,  the  relation  of  landlord  and  ten- 
ant as  to  all  but  strict  reversionary  rights  will  arise  between  them, 
notwithstanding  the  original  lessee  is  divested  of  all  reversionary 
rights,  and  his  lessee  is  liable  as  assignee.^^^  According  to  one  view, 
a  mere  reservation  of  a  new  rent,  or  of  a  right  of  reentry  for  a  breach 
of  any  of  the  conditions  of  the  lease,  will  not  change  the  legal  rela- 
tions of  the  parties,  and  the  introduction  of  covenants  into  the  instru- 
ment does  not  change  the  legal  effect  of  giving  up  the  reversion.^^* 
The  right  of  reentry  is  not  an  estate  or  interest  in  land,  nor  does 
it  imply  a  reservation  of  a  reversion.     It  is  a  mere  chose  in  action. 

2"  Cook  V.  Jones,  96  Ky.  283.  28  S.  Cleveland  &c.  R.  Co.,  45   Ind.  281; 

W.  960;  Den  v.  Alexander,  4  Dev.  &  Lee  v.   Payne,   4   Mich.   106;    Lloyd 

B.    (N.  Car.)    40;   Crusoe  v.  Bugby,  v.  Cozens,  2  Ashm.   (Pa.)   131,  138; 

3  Wils.  234,  2  W.  Bl.  766;   Hicks  v.  Adams  v.  Beach,  1  Phil.   (Pa.)   178; 

Martin,  25  Mo,  App.  359;  St.  Joseph  Prescott  v.  De  Forest,  16  Johns.  (N. 

&c.  R.  Co.  V.  St.  Louis  &c.  R.  Co.,  Y.)    159;    Bedford    v,    Terhune,    30 

135  Mo.  173,  26  S.  W.  602.  N.  Y.  453. 

""  Curtis  v.  Wheeler,  1  Mood.  &  M.         ™  Craig    v.    Summers,    47    Minn. 

493;    Pleasant   v.    Benson,    14    East  189,   49  N.  W.   742;    Smiley  v.  Van 

234,  237;  Peirse  v.  Sharr,  2  M.  &  R.  Winkle,   6  Cal.  605;    St.  Joseph  &c. 

418;    Austin  v.   Thomson,  45  N.  H.  R.  Co.  v.  St.  Louis  &c.  R.  Co.,  135 

113.  Mo.  173,  36  S.  W.  602,  citing  Beard- 

^*Whittemore  v.  Gibbs,  24  N.  H.  man  v.  Wilson,  L.  R.,  4  0.  P.  57; 

484;  1  Cruise  244;  4  Kent  114.  Doe  v.  Bateman,  2  B.  &  Aid.   168; 

^"Stewart  v.  Long  Island  R.  Co.,  Wollaston  v.   Hakewill,   3   Scott  N. 

102  N.  Y.  601,  8  N.   E.  200;    Craig  R.  593,  616;  Sexton  v.  Chicago  Stor- 

V.  Summers,  47  Minn.  189,  49  N.  W.  age  Co.,  129  111.  318,  21  N.  E.  920; 

742;    Indianapolis  &c.  Union  Co.  v.  Blumenberg  v.  Myres,  32  Cal.  93. 


509  EIGHTS   AND  LIABILITIES   OF   PARTIES.  [§    447 

When  enforced,  the  grantor  is  in  through  the  breach  of  condition 
and  not  by  the  reverter.^^^ 

In  a  case  arising  before  the  Supreme  Judicial  Court  of  Massachu- 
setts, a  lessee  for  years  demised  the  premises  to  another  for  a  term 
equal  to  the  whole  of  the  unexpired  term  of  the  original  lease,  by 
■  a  lease  containing  covenants  by  the  lessee  to  pay  rent  at  an  in- 
,  creased  rate  and  providing  that  the  lessor  might  enter  and  take  pos- 
session for  breach  of  covenant,  axid  that  the  lessee  would  quit  and 
deliver  up  the  premises  to  the  lessor  at  the  end  of  the  term.  In 
holding  that  this  instrument  was  not  an  assignment  Colt,  J.,  said: 
"There  is  no  reference  in  it  to  the  original  demise  and  no  indica- 
tion of  an  intention  on  the  part  of  the  sub-lessor  to  part  with  his 
whole  interest  in  the  leasehold  estate  or  to  lose  control  of  it  as  lessor. 
The  rent  reserved  was  larger  in  amount  than  that  reserved  in  the 
original  lease  and  the  lessee  covenants  to  deliver  up  possession  at 
the  end  of  the  term.  But  what  is  more  in  point,  the  right  is  re- 
served to  the  lessor  to  enter  and  expel  the  lessee  for  non-payment 
of  rent.  It  is  clear  that  the  parties  to  this  lease  intended  to  create 
the  relation  of  landlord  and  tenant  between  themselves.  And  it 
is  the  duty  of  the  court  to  give  effect  to  this  intention,  unless  con- 
trolled by  some  positive  rule  of  law."^^^  The  law  is  settled  in  Massa- 
chusetts that  if  the  smallest  reversionary  interest  is  retained  by 
the  lessee,  the  tenant  takes  as  sub-lessee  and  not  as  assignee.^^^  In 
Iowa  a  doctrine  similar  to  that  of  Massachusetts  is  in  force.  If  the 
sub-lease  reserves  new  rents  and  the  sub-tenant  covenants  to  deliver 
possession  to  the  lessee  and  not  to  the  original  landlord,  these 
covenants  take  from  it  the  character  of  an  assignment.  As  be- 
tween the  parties  there  is  a  reversionary  interest  in  the  lessee  and 
not  in  the  original  landlord. ^^^ 

Rights  and  Liabilities  of  Parties. 

§  447.     The  express  covenants  in  a  lease  continue  to  be  binding- 
upon  the  covenantor  notwithstanding-  his  assignment  of  the  lease.--^ 

'"Tied.  Real  Prop.,  §  277;  Sexton  '^^  Patten     v.     Deshon,     1     Gray 

V.  Chicago  Storage  Co.,  129  111.  318,  (Mass.)  325;  McNeil  v.  Kendall,  128 

21  N.  E.  920;  Schulenberg  v.  Harri-  Mass.  245.     See  also  Brattle  Square 

man,  21  Wall.    (U.  S.)    44;    Hooper  Church   v.   Grant,   3   Gray    (Mass.) 

V.  Cummings,  45  Me.  359;   Southard  142,  147. 

V.  Central  R.  Co.,  26  N.  J.  L.  13,  21;  "°  Collamer  v.  Kelley,  12  Iowa  319. 

St.  Joseph  &c.   R.   Co.  v.   St.  Louis  Relying  on  Post  v.  Kearney,  2  N.  Y. 

&c.  R.  Co.,  125  Mo.  173,  36  S.  W.  602.  394. 

"'Dunlap    V.    Bullard,    131    Mass.  -' Barhydt    v.    Burgess,    46    Iowa 

1^1'  476;    Brosman  v.  Kramer,  135  Cal. 


§    447]  ASSIGNMENT  OF  LEASES.  510 

The  reason  of  the  rule  is,  that  although  by  the  assignment  the  priv- 
ity of  estate  between  lessor  and  lessee  is  terminated,  there  still  re- 
mains the  privity  of  contract  between  them,  created  by  the  lease, 
which  is  not  affected  by  the  assignment,  although  made  with  the  as- 
sent of  the  lessor,  and  the  lessee  still  continues  liable  on  his  cov- 
enant by  virtue  of  this  privity  of  contract.^^^  If  the  covenant  to 
pay  rent  be  express  the  lessee  is  bound  so  long  as  the  term  continues ; 
but  if  implied,  he  is  discharged  whenever  he  is  divested  of  the 
estate.^^^  "Where  there  is  a  covenant  to  pay  rent,  the  lessee  can- 
not terminate  his  liability  by  an  assignment  of  the  lease,  although 
lessor  may  accept  rent  of  the  assignee  or  give  his  assent  to  the  as- 
signment.^^* If,  however,  there  be  no  express  contract  to  pay  the 
rent,  the  lessee's  liability  will  cease  after  the  lessor  consents  to 
an  assignment,  and  such  assent  may  be  inferred  from  his  accepting 
rent  of  the  assignee,  or  other  act  recognizing  him  as  his  tenant.^^^ 
That  is  because  the  privity  of  estate  is  destroyed,  and  as  there  is 
no  privity  of  contract  between  them,  there  is  no  longer  any  obliga- 
tion, express  qr  implied,  on  the  lessee.  But  in  order  to  destroy  this 
privity  of  estate  between  lessor  and  lessee,  there  must  be  the  con- 
currence of  the  lessor.  It  is  not  correct  to  state,  as  a  rule  of  law, 
that  a  lessee  who  has  not  made  an  express  covenant  to  pay  rent 
may  discharge  himself  to  all  future  responsibility  by  assigning  the 
lease."226 

36,  66  Pac.  979;   Wineman  v.  Phil-  v.   Smith,   131   Mass.   510;    Peers  v. 

lips,   93   Mich.   223,   53   N.  W.   168;  Consolidated  Coal  Co.,  59   111.  App. 

Jones  V.  Parker,  163  Mass.  564,  40  595;  Port  v.  Jackson,  17  Johns.  (N. 

N.  E.   1044;    Whetstone  v.  McCart-  Y.)    239.     In  a  case  where  a  lease 

ney,  32  Mo.  App.  430.  signed  by  the  lessees  was  never  de- 

-"  Garner   v.    Byard,    23    Ga.    289,  livered   to   them   but  was   assigned 

68  Am.  Dec.  527;    Barhydt  v.  Bur-  before    delivery    and    delivered    di- 

gess,  46  Iowa  476;   Oswald  v.  Fra-  rectly  to  the   assignee,   the   lessees 

tenburgh,  36   Minn.   270,  31   N.  W.  were  held  not  to  be  liable  on  the 

173.  covenants  in  the  lease.     Stetson  v. 

="  Barhydt    v.    Burgess,    46    Iowa  Briggs,  114  Cal.  511,  46  Pac.  603. 

476;    Fanning  v.   Stimson,   13   Iowa  -*  Cones  v.   Barnes,   45   Mo.   App. 

42;   Kimpton  v.  Walker,  9  Vt.  191;  590;    Fisher   v.    Milliken,   8   Pa.   St. 

Holliday    v.    Noland,    93    Mo.    App.  Ill,  120;   Shaw  v.  Partridge,  17  Vt. 

403;   Marsh  v.  Brace,  Cro.  Jac.  334;  626;    Mills  v.  Auriol,  1  H.  Bl.  433; 

Brett  V.  Cumberland,  Cro.  Jac.  521;  Pfaff  v.  Golden,  126  Mass.  402. 

Patten  v.  Deshon,  1   Gray    (Mass.)  =^  Jones   v.   Barnes,   45   Mo.   App. 

325,    330;    Farrington    v.    Kimball,  590;    Whetstone    v.    McCartney,    32 

126    Mass.    313;    Wall    v.    Hinds,    4  Mo.  App.  430. 

Gray  (Mass.)  256;  Blake  v.  Sander-  -^Consumers'    Ice    Co.    v.    Bixler, 

son,  1   Gray    (Mass.)    332;    Sanders  84   Md.   437,   447,   35   Atl.    1086,  per_ 

V.  Partridge,  108  Mass.  556;   Mason  Boyd,  J. 


511  EIGHTS   AND  LIABILITIES   OF   PARTIES.  [§'  447 

"A  liability  of  the  lessee  arising  from  his  express  contract  is  per- 
manently fixed  during  the  whole  term  so  that  no  act  of  his  own  can 
absolve  him  from  the  lessor's  demands  in  respect  to  it."^^^  The 
mere  assignment  of  a  lease  by  a  lessee  and  acceptance  of  rent  by 
the  lessor  from  the  assignee  does  not  preclude  the  lessor  from  main- 
taining an  action  against  the  lessee  on  his  covenant  to  pay  rent 
and  taxes.^^^  It  is  a  settled  rule  that  an  action  of  covenant  will 
lie  on  a  covenant  in  a  deed  against  a  lessee  notwithstanding  a  third 
person  be  at  the  time  the  actual  tenant,  recognized  as  such 
by  the  lessor;  and  an  action  lies  against  the  lessee's  executors,  not- 
withstanding he  may  have  assigned  in  his  lifetime,  and  the  rent 
accrues  subsequent  to  his  death.  The  reason  given  for  the  rule  is 
this,  that  the  privity  of  contract  of  the  testator  is  not  determined 
by  his  death,  and  the  executor  shall  be  charged  with  all  his  con- 
tracts so  long  as  he  has  assets.^^^ 

The  lessor  may  pursue  either  lessee  or  assignee,  or  both  at  the 
same  time,  though  he  will  be  entitled  to  but  a  single  satisfaction.^^** 
After  an  assignment  of  the  lease,  the  lessor  has  a  double  and  several 
security  for  the  payment  of  his  rent,  either  or  both  of  which  he 
may  pursue  till  satisfaction  is  obtained.  Therefore,  the  receipt  of 
rent  from  the  assignee  of  the  lessee  does  not  amount  to  a  novation 
or  release  of  the  lessee,  but  is  the  assertion  of  a  right  which  accrued 
to  the  lessor  as  an  incident  to  the  assignment.-^^  Where  a  lessor  sues 

=='Sutliff  V.  Atwood,   15   Ohio   St.  Cro.  Car.  188;    Pitcher  v.   Tovey,  4 

186;  Smith  v.  Harrison,  42  Ohio  St.  Mod.  71,  76;  Auriol  vT  Mills,  4  Term 

180;  Missouri  &c.  Co.  v.  Richardson,  R.  94,  98,  99. 

57  Neb.  617,  78  N.  W.  273.  "=>  Carley    v.    Lewis,    24    Ind.    23; 

=^*  Wilson  V.  Gerhardt,  9  Colo.  585,  Van  Rensselaer  v.  Platner,  2  Johns. 

17  Pac.  705;  Rector  v.  Hartford  De-  Cas.   (N.  Y.)  17. 

posit  Co.,  190  111.  380,  60  N.  E.  528,  ^  Whetstone  v.  McCartney,  32  Mo. 

affirming   92    111.   App.    175;    Harris  App.  430;   Taylor  v.  DeBus,  31  Ohio 

v.  Heackman,  62  Iowa  411,  17  N.  W.  St.  468;   Sutliff  v.  Atwood,  15  Ohio 

592;  Wall  v.  Hinds,  4  Gray  (Mass.)  St.  186;  Lodge  v.  White,  30  Ohio  St. 

256;    Rees  v.  Lowry,  57  Minn.  381,  569;  Port  v.  Jackson,  17  Johns.   (N. 

59  N.  W.  310;   Adams  v.  Burke,  21  Y.)  239,  479;  Boot  v.  Wilson,  8  Bast 

R.  I.  126,  42  Atl.  515;  Pfaff  v.  Gold-  311,   n.;    Arthur  v.   Vanderplank,   7 

en,  126  Mass.  402;  Hunt  v.  Gardner,  Mod.     198;     Thursby    v.     Plant,    1 

39  N.  J.  L.  530;   Edwards  v  Spald-  Saund.  237. 

ing,  20  Mont.  54,  49  Pac.  443;    Ma-  '"Taylor   v.   DeBus,   31   Ohio    St. 

son  V.   Smith,  131   Mass.   510,   511;  468;    Stone,    Succession    of,    31    La. 

Edwards  v.  Spalding,  20  Mont.   54,  Ann.    311;     Grommes    v.    St.    Paul 

49   Pac.    443;    Barnard    v.    Godscall,  Trust  Co.,  147  111.  634,  648,  35  N.  E. 

Cro.  Jac.  309;  Brett  v.  Cumberland,  820;  Laird  v.  Mantonya,  83  111.  App. 

Cro.   Jac.   521;    Bachelour   v.   Gage,  327. 


§    448]  ASSIGNMENT   OF  LEASES.  512 

an  assignee  of  the  lessee,  the  lease  and  not  the  assignment  is  the  basis 
of  the  recovery,  and  it  is  not  a  fatal  omission  to  fail  to  file  a  copy 
of  the  assignment,^^^  A  previous  suit  by  lessor  against  the  original 
lessee  upon  which  nothing  has  been  collected  does  not  bar  an  action 
against  the  assignee.^^^ 

§  448.  The  contract  of  the  original  lessee  continues  in  force  unless 
the  lessor  accepts  the  assignee  as  sole  tenant  and  absolves  the  original 
lessee.^^*  In  order  that  an  assignment  shall  discharge  a  lessee  from 
express  covenants,  it  is  essential  to  show  that  there  was  some  new 
leasing,  or  some  understanding  that  the  lessee  be  released,  or  some 
acts  from  which  an  intention  to  discharge  the  lessee  can  be  in- 
ferred.^^^  Mere  acceptance  of  rent  from  an  assignee  does  not  dis- 
charge the  lessee  from  an  express  covenant. ^^^  The  recovery  in  an 
action  against  an  assignee,  not  being  for  the  full  amount  of  the 
rent  reserved,  but  only  for  the  value  of  his  own  use  and  occupation, 
does  not,  beyond  the  satisfaction  so  received,  affect  the  rights  or  the 
remedies  of  the  lessor  upon  the  covenants  of  the  lease.^^'^  An  ex- 
press covenant  to  pay  rent  can  be  discharged  by  no  mere  collateral 
matter,  and  by  nothing  short  of  a  mutual  agreement.-^^  "Doubt- 
less it  is  competent,"  said  Chief  Justice  Bigelow,  "for  a  lessor  to 
enter  into  such  stipulations  with  an  assignee  as  to  accept  him  as 
sole  tenant  and  to  absolve  the  original  lessee  from  his  contract.  But 
an  intent  to  create  a  new  contract  and  to  annul  the  lease  as  against 
the  original  lessee  must  be  clearly  shown. "-^^  However,  the  law 
does  not  demand  direct  proof  of  an  agreement  in  any  form  to  estab- 
lish such  a  discharge  of  the  lessee.  Acts  of  the  parties,  or  circum- 
stances inconsistent  with  any  other  conclusion,  are  sufficient  to  estab- 
lish the  fact  of  the  surrender  of  the  property  by  the  lessee  and  his 
discharge  by  the  lessor,  and  the  acceptance  of  the  assignee  as  tenant 
in  his  place.  The  fact  that  the  lease  provided  that  the  lessee  could  not 
assign  it  without  the  assent  of  the  lessor  and  his  refusal  to  give 

='''' Hardison  V.  Mann,  20  Ind.  App.  well,    127    Mass.    242;    Burnham   v. 

404,  50  N.  E.  899.  Hubbard,  36  Conn.  539;   Brosnan  v. 

'^^  Le  Gierse  v.  Green,  61  Tex.  128.  Kramer,  135  Cal.  36,  66  Pac.  979. 

=5*  Laird  v.  Mantonya,  83  111.  App.  "'  Deane    v.    Caldwell,    127    Mass. 

327.  242;    Inches   v.    Dickinson,    2   Allen 

^^'Wineman  v.  Phillips,  93  Mich.  (Mass.)    71;    Dwight   v.   Mudge,   12 

223,     53     N.     W.     168;     Stewart    v.  Gray   (Mass.)   23. 

Sprague,  71  Mich.  50,  57,  38  N.  W.  "*  Burnham  v.  Hubbard,  36  Conn. 

673;   Bailey  v.  Wells,  8  Wis.  141.  539. 

=^«  Harris   v.   Heackman,   62   Iowa  ===»  Way  v.  Reed,  6  Allen    (Mass.) 

411,  17  N.  W.  592;    Deane  v.   Cald-  364,  369. 


513  RIGHTS   AND  LIABILITIES   OF   PARTIES.  [§    449 

such  consent  does  not  require  a  different  conclusion.  It  is  competent 
for  the  lessor  to  waive  this  condition  by  subsequent  acts.^*°  On  the 
contrary,  the  lessee  may  by  express  contract  continue  his  liability 
after  an  assignment  and  this  would  necessarily  negative  any  infer- 
ence that  the  assignee  was  accepted  as  a  new  tenant  in  place  of  the 
lessee.  It  is  entirely  within  the  province  of  the  contracting  parties 
to  agree  that  the  lessee  shall  remain  as  before  principally  and  per- 
sonally liable  for  the  rentals,  notwithstanding  the  substitution  of 
another  party  as  tenant.^*^ 

The  effect  of  the  assent  by  a  lessor  to  a  second  assignment  for  a 
different  use  and  occupation  from  that  specified  in  the  original  lease 
would  be  to  create  a  new  tenancy  and  the  original  lessee's  liability 
for  rent  would  cease  while  such  tenancy  continued.  It  was  contended 
by  counsel  for  the  lessor  that  the  covenant  to  use  the  premises  for 
a  particular  purpose  was  for  the  benefit  of  the  lessor  and  could  be 
waived.  This  might  be  true  while  the  lessee  was  in  occupation;  but 
after  he  had  parted  with  the  estate,  though  still  liable  on  his  cov- 
enants to  pay  rent,  a  new  contract  could  not  be  made  in  regard  to 
the  purpose  for  which  the  premises  should  be  used,  without  his  con- 
sent, given  in  such  manner  and  under  such  circumstances  as  to 
show  that  he  was  still  to  be  held  liable  under  his  lease.^'*- 

Though  it  appears  that  the  lessee  has  assigned  his  lease  for  the 
remainder  of  the  term  to  another  party,  yet  it  is  competent  for  him 
to  institute  an  action  for  any  damages  accruing  to  him  by  reason  of 
a  breach  of  the  covenants  of  the  lease  by  the  lessor,  while  he  held 
the  lease,  and  to  recover  such  damages  it  is  proper  that  the  lease  be 
exhibited  in  evidence.^*^ 

§  449.  A  lessee  is  liable  as  surety  for  the  assignee.  Though  both 
lessee  and  assignee  are  liable  to  the  lessor,  yet  the  ultimate  liability 
as  between  themselves,  cannot  depend  upon  which  of  tlie  two  he 
may,  from  interest  or  caprice,  elect  to  pursue  to  the  satisfaction 
of  his  demand.  The  estate  is  the  consideration  which  the  lessor 
furnished  for  his  demand  for  rent,  and  from  which  it  was  expected 
to  issue.  The  privity  of  estate  between  the  lessor  and  the  lessee, 
and  upon  which  the  personal  liability  of  the  lessee  is  founded,  hav- 

^*°  Colton  v.  Gorham,  72  Iowa  324,  =*=  Fifty   Associates  v.   Grace,   125 

33  N.  W.  76.  Mass.  161. 

="Latta  v.  Weiss,  131  Mo.  230,  32  ^"Cleveland  &c.  R.   Co.  v.  Wood, 

S.  W.  1005.  189  111.  352,  59  N.  E.  619,  affirming 


90  111.  App.  551. 


Jones  L.  &  T.— 33 


§•  450]  ASSIGNMENT  OF  LEASES.  51i 

ing  ceased,  and  by  the  assignment  passed  to  the  assignee,  the  latter, 
as  between  himself  and  the  lessee,  in  the  absence  of  any  agreement, 
is  to  be  regarded  as  primarily  liable  for  the  rent,  and  the  personal 
liability  of  the  lessee  us  collateral  thereto.  The  lessee  is  liable  in  the 
nature  of  a  surety  for  the  assignee  during  the  continuance  of  his 
interest,  and  although  the  assignee  is  not  bound  by  an  express  prom- 
ise, yet  the  law  imposes  a  duty  upon  him  to  perform  the  covenants 
while  he  enjoys  the  estate.^**  So  it  was  urged  that  the  lessee  was 
liable  only  in  case  the  lessor  failed  to  get  the  rent  out  of  the  as- 
signee and  if  the  property  of  the  assignee  was  sufficient  and  the  lessor 
allowed  it  to  be  taken  out  of  his  reach  after  being  notified  to  proceed 
against  it,  the  lessee  would  be  discharged  from  liability.^*^ 

§  450.     The  duration  of  a  term  after  an  assignment  does  not  at  all 
affect  the  obligation  of  a  lessee  upon  his  express  covenant.    By  the 

common  law,  the  liability  of  the  lessee,  on  his  express  covenant  to 
pay  rent  during  the  term,  attaches  to  him  and  to  his  personal  repre- 
sentatives, as  long  as  assets  remain  in  their  hands,  whether  the  term 
of  the  lease  is  for  one  year  or  for  many,  with  or  without  a  covenant 
for  renewal,  or  in  perpetuity.  !N'umerous  cases  are  reported,  where 
the  lease  was  perpetual  or  renewable  forever,  in  which  the  same 
liability  was  found  as  in  leases  for  a  short  term  of  years.  Indeed, 
it  seems,  from  the  nature  of  the  covenant  itself,  no  distinction  can 
be  made  on  account  of  the  duration  of  the  term;  it  is  a  personal 
engagement  to  pay  rent  during  the  term;  as  long  as  assets  can  be 
found,  the  obligation  may  be  enforced.  The  law  imposes  no  limit 
upon  the  time  within  which  covenants  to  pay  money  must  mature. 
This  is  left  entirely  to  the  discretion  of  the  contracting  parties. 2*® 
The  force  of  an  express  covenant  to  pay  rent,  by  construction  of 
the  whole  instrument,  may  be  modified  and  limited  by  other  cov- 
enants. In  construing  one  lease,  the  court  found  that  the  lessee, 
after  the  assignment  of  the  term,  was  not  liable  under  a  particular 
covenant  for  the  payment  of  rent  after  a  reappraisement.  In  de- 
termining this  question  the  court  looked  to  the  relations  and  interests 
which  the  respective  parties  had   in  the   subject-matter,   and  con- 

=«Sutliff  V.   Atwood,  15   Ohio   St.  7  M.  &  W.  517,  530;  Woolveridge  v. 

186;  Main  v.  Feathers,  21  Barb.  (N.  Steward,  1  Cr.  &  M.  644,  659. 

Y.)    646;    Latta   v.   Weiss,   131   Mo.  "=Latta  v.  Weiss,  131  Mo.  230,  240, 

230,  32  S.  W.  1005;    Smith  v.  Peat,  32  S.  W.  1005. 

9  Exch.   161;    Burnett  v.   Lynch,   5  =^  Taylor   v.    DeBus,   31   Ohio   St. 

B.  &  C.  589;   Humble  v.  Langston,  468. 


515  EIGHTS   AND  LIABILITIES   OF   PARTIES.  [§    451 

eluded  that  the  assignees  in  possession  were  the  proper  parties  to 
act  in  the  reappraisement.-*'^ 

§  451.  In  case  a  lessee  has  been  held  to  his  liability  for  rent  after 
an  assignment,  he  will  be  entitled  to  recover  the  rent  from  his  as- 
signees.^*^  Where  a  lessee  haa  been  compelled  to  pay  damages  to  the 
lessor  for  breach  of  the  covenants  of  the  lease  while  his  assignee  is 
in  possession,  he  can  maintain  an  action  against  the  assignee  for 
neglect  to  perform  the  covenants,  whereby  the  lessee  suffered  dam- 
ggg_249  rp-j^g  effect  of  the  assignment  is  that  the  lessee  becomes  a 
surety  to  the  lessor  for  the  assignee,  to  pay  the  rent  and  perform  the 
covenants  running  with  the  estate,  and  the  surety  after  paying  the 
debt,  or  discharging  the  obligation  to  which  he  is  liable,  has  his 
remedy  over  against  the  principal.^^"  In  a  subsequent  case  Chief 
Justice  Cockburn,  while  conceding  that  the  assignee  might  he  held 
on  the  ground  of  the  implied  contract,  was  of  the  opinion  that  the 
liability  of  the  assignee  might  be  put  on  another  and  preferable 
ground,  namely,  that  when  one  person  is  compelled  to  pay  damages 
for  the  legal  default  of  another,  he  is  entitled  to  recover,  from  the 
person  by  whose  default  the  damage  was  occasioned,  the  money  so 
paid,  and  that  it  was  a  matter  of  indifference  whether  the  liability 
rested  on  an  implied  contract  or  on  an  obligation  imposed  by  law; 
it  was  a  duty  the  law  enforces.^^^  In  case  either  of  these  grounds 
are  adopted  as  the  basis  on  which  a  lessee  may  maintain  an  action 
against  an  assignee,  it  is  clear  that  he  can  do  so  only  after  he  has 
paid  the  lessor  for  breach  of  the  covenants  of  the  lease  by  the  as- 
signee. If  he  is  a  surety,  then  he  must  pay  the  debt  for  which  he  is 
liable  before  he  can  recover  of  the  principal.^ ^^  If  it  is  a  debt  im- 
posed upon  him  by  the  default  or  act  of  the  assignee  it  must  of 
course  be  discharged  before  the  liability  of  the  assignee  accrues.^^' 
This  right  of  action  in  the  lessee  is  not  restricted  to  his  immediate 
assignee,  but  is  available  against  any  subsequent  one  who  accepts 
the  estatc^s-i 

=*'  Worthington  v.  Hewes,  19  Ohio  "'  Moule  v.  Garrett,  L.  R.,  7  Exch. 

St.  66.  101,  affirming  L.  R.,  5  Exch.  132. 

^*^  Patten     v.     Deshon,     1     Gray  ^-  Hoyt    v.    Wilkinson,    10    Pick. 

(Mass.)    325;    Farrington    v.    Kim-  (Mass.)  31. 

ball,  126  Mass.  313;  Mason  V.  Smith,  ==^  Farrington     v.     Kimball,     126 

131  Mass.  510.  Mass.  313. 

="  Burnett  v.  Lynch,  5  B.  &  C.  589.  ==*  Wolveridge    v.    Steward,    1    Cr. 

^^^  Wolveridge    v.    Steward,    1    Cr.  &  M.  644,  660;   Moule  v.  Garrett,  L. 

6  M.  644,  660;  Humble  v.  Langston,  R.,  5  Exch.  132,  L.  R.,  7  Exch.  101; 

7  M.  &  W.  517,  530.  Farrington    v.    Kimball,    126    Mass. 

313;  Mason  v.  Smith,  131  Mass.  510. 


I    451]  ASSIGXilEXT  OF  LEASES.  516 

But  whether  the  lessee  may  recover  from  his  first  assignee  such 
sums  as  he  has  been  obliged  to  pay,  arising  out  of  the  default  of  a 
second  assignee  to  whom  the  first  assignee  has  assigned  all  his  inter- 
est, presents  a  very  different  question,  in  the  absence  of  an  express 
assumption  by  the  first  assignee.  The  implied  promise  to  perform 
the  duty  imposed  on  him  by  the  acceptance  of  the  assignment  must 
be  limited  to  the  time  while  he  holds  the  estate  under  the  assign- 
ment and  while  by  virtue  of  his  privity  of  estate  with  the  lessor, 
he  is  liable  to  him  for  the  performance  of  the  covenants.  Such 
promise  cannot  include  the  payments  of  any  sums,  except  those 
which  as  assignee  he  assumes,  and  for  which,  when  he  assigns  the 
lease,  he  is  no  longer  liable  to  the  lessee.^^^  One  in  by  mesne  as- 
signment is  under  an  obligation  to  indemnify  the  original  lessee 
against  breaches  of  covenant  in  the  lease,  committed  during  the 
continuance  of  his  own  tenancy,  but  not  for  any  subsequent  breach.^^^ 

But  in  case  the  assignment  is  in  direct  violation  of  the  terms  of 
the  lease  and  the  lessors  have  not  consented  or  done  any  act  which 
would  operate  as  a  waiver,  the  assignee  would  be  liable  to  his  as- 
signor for  rent  even  before  the  latter  had  paid  the  rent  to  the 
original  lessor.  The  assignee  is  not  in  a  position  to  deny  such 
liability  until  he  has  made  some  arrangement  with  the  original 
lessors  rendering  the  assignment  valid.  No  relation  of  landlord 
and  tenant  exists  between  the  assignee  and  the  original  lessors 
until  the  condition  against  assignment  has  been  waived.^^^ 

An  express  covenant  by  the  assignee  to  repair  would  enable  the 
assignor  to  maintain  an  action  against  him  for  failure  to  repair 
even  before  the  assignor  himself  had  been  made  liable  over  to  the 
lessor.  In  the  case  where  this  decision  was  made  the  leased  prem- 
ises were  a  turnpike  road  and  the  lessee  was  liable  for  accidents 
occurring  from  the  disrepair  of  the  road.-^^ 

§  452.  When  the  covenant  to  pay  rent  is  implied  in  law,  accept- 
ance of  rent  directly  from  an  assignee  will  discharge  the  original 
lessee.-"^  If  the  lessee's  obligation  to  pay  rent  is  not  founded  upon 
an  express  agreement  but  is  only  implied  in  law  from  privity  of 

==' Mason  v.  Smith,  131  Mass.  510.  =^"  Darmstaetter    v.    Hoffman,    120 

2="  Brinkley  v.  Hambleton,  67  Md.  Mich.  48,  78  N.  W.  1014. 

169,    177,    8    Atl.    904;     Burnett    v.  =^  Jouitt  v.   Lewis,   4   Litt.    (Kj-.) 

Lynch,  5  B.  &  C.  589;  Moule  v.  Gar-  160. 

rett,   L.    R.,   5   Exch.    132,   L.    R.,    7  =="  Marsh  v.  Brace,  Cro.  Jac.  334; 

Exch.  101.  Stimmel   v.   Waters,   2   Bush    (Ky.) 

282. 


517  RIGHTS   AND   LIABILITIES   OF  PARTIES.  [§    453 

estate  between  the  parties,  the  assignment  of  the  lease  and  surrender 
of  possession  to  the  assignees,  with  the  consent  of  the  lessor,  to  be 
implied  from  his  acceptance  of  rent  from  the  new  tenant,  extinguishes 
the  privity  of  estate  between  the  parties,  and  the  consequent  implied 
liability  of  the  lessee  to  pay  rent.  So,  where  tenants  holding  over 
from  year  to  year  assign  an  estate  and  the  assignee  is  accepted  as  a 
tenant  by  the  landlords,  the  original  tenant  ceases  to  be  liable  for  rent 
because  he  was  only  liable  on  an  implied  promise  raised  in  law  by  his 
occupation.^^" 

In  another  case  a  reservation  of  rent  was  followed  by  the  clause, 
"the  said  lessees  well  and  truly  keeping  and  performing  their  part  of 
these  presents  to  be  by  them  performed  as  aforesaid."  This  was  not 
an  express  covenant  to  pay  rent,  but  only  an  implied  one,  so  that  the 
original  lessee  was  not  liable  for  rent  after  an  assignment  of  the 
lease.  These  words  are  not  so  strong  as  the  words  "yielding  and  pay- 
ing," which  by  the  better  view  do  not  create  an  express  covenant.^'^^ 

§  453.  A  surety  for  a  lessee  is  not  discharged  from  liability  on  the 
express  covenants  of  the  lease  by  an  assignment  to  any  greater  extent 
than  the  lessee  himself  would  be  discharged.  A  contract  of  guaranty 
presupposes  another  and  original  contract,  to  which  it  is  collateral; 
it  is  an  undertaking  to  answer  for  the  performance  of  some  contract 
of  another.  A  failure  to  pay  rent  would,  even  after  an  assignment 
of  a  lease,  be  the  default  of  the  lessees,  and  the  sureties  would  be 
liable  as  their  guarantors. ^^^  If  the  lease  provides  that  the  lessee 
shall  not  assign  or  sub-let  without  written  consent,  there  is  an  implied 
understanding  that  with  such  consent  there  may  be  an  assignment  or 
sub-letting,  and  the  sureties  are  bound  to  know  this  when  they  exe- 
cuted their  guaranty.  Hence  it  would  not  operate  to  discharge  them 
from  their  liability  that  the  lessors  should  give  such  a  written  con- 
sent. That  consent  having  been  obtained  at  any  time,  it  did  not  mat- 
ter whether  the  lessees  themselves  sub-let  or  through  an  agent,  nor  did 
it  matter  that  the  agent  was  the  lessor  himself.-"^  A  material  altera- 
tion in  the  relation  of  the  original  parties  to  each  other,  without  the 
consent  of  the. surety,  will,  however,  operate  as  a  discharge,  as  if  the 

"-«» Lodge  V.  White,  80  Ohio  St.  569.  Greene,    13    R.    I.    350;    Morgan    v. 

="  Fanning  v.  Stimson,  13  Iowa  42.  Smith,   70   N.   Y.    537,   544;    Way  v. 

^=Dietz  v.    Schmidt,    27   111.   App.  Reed,  6  Allen  (Mass.)   364;  Hunt  v. 

114;  Bradley  v.  Walker,  93  111.  App.  Gardner,  39  N.  J.  L.  530;    Damb  v. 

609;    Parnham    v.    Monroe,    35    111.  Hoffman,  3  E.  D.  Smith  (N.  Y.)  361. 

App.  114;  Oswald  v.  Fratenburgh,  36  ="^  Morgan  v.  Smith,  70  N.  Y.  537; 

Minn.   270,  31  N.  W.  173;    Almy  v.  Stein  v.  Jones,  18  111.  App.  543. 


§§   454,   455]  ASSIGNMENT   OF  LEASES.  518 

lessor  enlarges  the  time  for  performance  or  makes  a  new  lease  of  the 
premises,  either  to  the  lessee  or  to  some  other  person.^®*  Furthermore, 
it  has  been  said  that  the  decided  cases  favor  the  proposition  that  one 
who  signs  a  lease  apparently  as  principal  may  show  by  parol  that  he 
did  sign  as  surety  to  the  knowledge  of  the  other  party  to  the  instru- 
ment. ^^^ 

§  454.  Liability  of  lessor  on  covenant  after  assignment. — Most  of 
the  cases  which  have  arisen  on  the  point  of  liability  after  assignment 
are  cases  of  covenants  by  lessees,  but  the  reasoning  is  equally  good  for 
covenants  by  lessors.  A  lessor  who  has  expressly  covenanted  with  his 
lessee  for  the  performance  of  certain  things  cannot  escape  his  liabil- 
ity on  such  covenants  by  assigning  the  reversion  to  another.  "How- 
ever it  may  be  as  to  the  benefits,  lessors  cannot  get  rid  of  the  burden  of 
their  contracts  by  conveying  their  land.  In  the  case  of  the  tenant  as 
in  the  case  of  the  landlord,  it  cannot  be  endured  that  he  should 
afterwards  be  deprived  of  his  action  on  the  covenant  to  which  he 
trusted  by  an  act  to  which  he  cannot  object."^®^  To  a  certain  extent 
it  is  also  true  that  the  lessor  remains  liable  to  an  assignee  of  the 
lessee,  on  the  original  covenants  in  the  lease.  Where  a  lease  contains 
an  agreement  that  the  lessee  may  purchase  the  land  during  the  con- 
tinuance of  the  lease,  the  assignment  of  the  lease  conveys  to  and  in- 
vests in  the  assignee  the  same  right.^^^  This  rule  must  be  restricted 
to  cases  where  no  terms  of  sale  are  stipulated  for  or  the  sale  is  to  be 
for  cash.  If  the  sale  is  to  be  for  credit,  the  lessor  is  under  no  obliga- 
tion to  give  credit  to  any  one  but  the  original  lessee,  and  a  contract 
so  personal  in  its  nature  cannot  be  assigned  to  another.^^^ 

§  455.  An  assignee  of  a  lease  is  bound  by  privity  of  estate  to  per- 
form the  express  covenants  which  run  with  the  land,  but  in  the  ab- 
sence of  express  agreement  on  his  part,  he  is  liable  only  on  such 
covenants  as  run  with  the  land  and  only  during  such  time  as  he  holds 
the  term. 2^^    When  the  assignee  accepts  the  assignment  of  a  lease,  he 

28*  Miller  v.  Stewart,  9  Wheat.  (U.  285;    Laffan  v.   Naglee,  9  Cal.   662; 

S.)  680;  White  v.  Walker,  31  111.  422.  Hall  v.  Center,  40  Cal.  63;  Schroeder 

"^^  Stein  V.  Jones,  18  111.  App.  543.  v.  Gemeinder,  10  Nev.  355. 

^'  Carpenter    v.    Pocasset    Manuf .         -^  Menger  v.  Ward,  87  Tex.  622.  30 

Co.,  180  Mass.  130,  133,  61  N.  E.  816,  S.  W.  853. 

per  Holmes,  C.  J.;  Jones  v.  Parker,        "^'■' Myers  v.  Silljacks,  58  Md.  319; 

163  Mass.  564,  40  N.  E.  1044.  Donelson  v.  Polk,  64  Md.  501,  2  Atl. 

='«'Kerr   v.    Day,   14    Pa.    St.    112;  824;  Nickel  v.  Brown,  75  Md.  172,  23 

Jackson  v.   Groat,  7   Cow.    (N.  Y.)  Atl.  736;   Gordon  v.  George,  12  Ind. 


II 


519 


EIGHTS  AND  LIABILITIES  OF  PARTIES. 


[§  455 


is  charged  with  knowledge  of  the  covenants  therein  and  takes  it 
cum  onere,  subject  to  the  payment  of  the  rent  which  shall  thereafter 
become  due  and  to  the  performance  of  the  covenants  running  with 
the  land,  which  by  the  terms  of  the  lease,  the  lessee  was  bound  to  per- 
form. Because  of  privity  of  estate  he  is  liable  upon  covenants  matur- 
ing and  broken  while  title  is  held  by  him.^'^"  The  law  has  been 
stated  to  be  that  *'the  assignee  is  answerable  for  the  rent  during  his 
ownership  of  the  term  under  the  assignment,  and  his  liability  there- 
for arises  out  of  the  privity  of  estate,  and  this,  without  reference  to 
any  obligation  assumed  by  him  in  the  contract  of  assignment."^^^ 
The  original  lessee  is  bound  by  the  contract  to  make  the  payments. 
The  assignee  is  bound  by  his  acceptance  of  the  lease  to  make  good 
the  covenant  to  pay  rent  therein  contained.  His  liability  is  upon  the 
covenants  and  arises  not  from  any  express  assumption  or  agreement 
to  pay  it  which  might  be  contained  in  the  written  assignment,  but 
from  the  privity  of  estate  by  reason  of  his  ownership  and  right  to 
enjoy  the  benefits  of  the  lease.^" 

The  assignee  is  in  privity  of  estate  but  not  in  privity  of  contract 
with  the  lessor  and  is  only  liable  on  covenants  which  run  with  the 
land,  such  as  covenants  for  rent,  to  pay  taxes  and  to  yield  up 
premises  in  good  repair.^"  Wliere  rent  is  payable  quarterly,  an 
assignee  is  liable  for  rent  for  the  entire  quarter  within  which  he 
became  assignee,  the  rent  not  yet  having  accrued.     The  quarter's 


408;  Reid  v.  John  F.  Wiessner  Brew- 
ing Co.,  88  Md.  234,  40  Atl.  877; 
Consolidated  Coal  Co.  v.  Peers,  166 
111.  361,  46  N.  E.  1105;  Muldoon  v. 
Hite,  6  Ky.  L.  R.  663;  Le  Gierse  v. 
Green,  61  Tex.  128;  Bonetti  v.  Treat, 
91  Cal.  223,  27  Pac.  612;  Darmstaet- 
ter  V.  Hoffman,  120  Mich.  48,  78  N. 
W.  1014;  Grundin  v.  Carter,  99 
Mass.  15;  Gray  v.  Clement,  12  Mo. 
App.  579;  Trask  V.  Graham,  47 
Minn.  571,  50  N.  W.  917. 

^0  Graves  v.  Porter,  11  Barb.  (N. 
Y.)  592;  Bailey  v.  Richardson,  66 
Cal.  416,  5  Pac.  910;  Bedford  v.  Ter- 
hune,  30  N.  Y.  453,  458,  86  Am.  Dec. 
394;  Gas  Co.  v.  Johnson,  123  Pa.  St. 
576,  16  Atl.  799;  Dunn  v.  Barton,  16 
Fla.  765;  West  Virginia  C.  &  P.  Co. 
V.  Mclntire,  44  W.  Va.  210,  28  S.  E. 
696;    Webster   v.    Nichols,    104    111. 


160;  Journeay  v.  Brackley,  1  Hilt. 
(N.  Y.)  447;  Overman  v.  Sanborn, 
27  Vt.  54;  Bailey  v.  Wells,  8  Wis. 
141. 

-'"■  Bonetti  v.  Treat,  91  Cal.  223,  27 
Pac.  612. 

"=  Watson  &c.  Co.  v.  Casteel,  73 
Ind.  296;  McDowell  v.  Hendrix,  67 
Ind.  513;  Gordon  v.  George,  12  Ind. 
408;  Edmonds  v.  Mounsey,  15  Ind. 
App.  399,  44  N.  E.  196;  Stewart  v. 
Long  Island  &c.  R.  Co.,  102  N.  Y. 
607,  8  N.  E.  200. 

""  Peck  V.  Christman,  94  111.  App. 
435;  Consolidated  Coal  Co.  v.  Peers, 
97  111.  App.  188;  Trask  v.  Graham, 
47  Minn.  571,  50  N.  W.  917;  Van 
Rensselaer  v.  Bonesteel,  24  Barb. 
(N.  Y.)  365;  Post  V.  Kearney,  2  N. 
Y.  394. 


§   456]  ASSIGNMENT  OF  LEASES.  520 

rent  in  such  cases  is  not  to  be  apportioned.^^*  There  is  no  reason 
why  the  same  rule  should  not  apply  as  to  taxes.  If  the  covenant  to 
pay  taxes  be  general,  it  would  be  satisfied  by  payment  within  the 
year  so  as  to  save  the  lessor  harmless.  The  lessee  would  not  be  at 
fault  till  the  taxes  became  delinquent.  If  there  had  been  no  breach 
of  the  covenant  to  pay  taxes,  the  assignee  would  take  the  leasehold 
estate  cum  onere  as  to  them  also.^^^  The  general  rule  is  that  the 
assignee  of  a  lease  takes  it  subject  to  a  covenant  therein  to  pay 
taxes,  and  a  subsequent  assignment  by  him  will  not  relieve  him  from 
liability  occurring  during  the  continuance  of  his  title.^^®  So,  where 
such  an  obligation  rested  on  the  original  lessee,  an  assignee  of  the 
lease  would  likewise  be  liable  to  pay  taxes  on  all  improvements 
erected  on  the  leased  premises  during  the  term.^^^ 

If  a  party  enters  as  a  sub-tenant,  he  is  bound  by  the  terms  of  the 
original  lease,  of  the  existence  and  terms  of  which  he  is  bound  to  take 
notice.  So,  if  the  sub-tenant  holds  possession  after  the  term  of  the 
original  lease  has  matured,  he  is  guilty  of  unlawfully  and  forcibly 
detaining  possession  of  the  premises.^^^  It  has  even  been  held  that 
a  collateral  agreement  by  the  lessee  which  was  not  put  on  record, 
would  bind  a  sub-lessee,  for  it  was  the  duty  of  the  latter  to  inform 
himself  of  the  covenants  undertaken  by  the  lessee.-^® 

§  456.  The  liability  of  an  assignee  upon  the  covenants  of  a  lease 
continues  only  so  long  as  the  privity  of  estate  continues;  when  that 
ceases  his  liability  ceases.  That  an  assignee  of  a  lease  may,  by  re- 
assignment, divest  himself  of  all  liability  upon  the  lease,  is  well  estab- 
lished.^^"   He  may  do  this  without  giving  notice  to  the  lessor  or  ob- 

="*  Graves  v.  Porter,  11  Barb.   (N.  v.  Chicago  Storage  Co.,  129  111.  318, 

Y.)  592;  Trask  V.  Graham,  47  Minn.  21  N.  E.   920;    Chicago  Attachment 

571,  50  N.  W.  917.  Co.   v.   Davis  &c.   Co.,   142    111.   171, 

=^5  Trask  v.  Graham,  47  Minn.  571,  178,   31   N.   E.    438;    Trabue  v.   Mc- 

50  N.  W.  917.  Adams,   8   Bush    (Ky.)    74;    Meyers 

"°  State  v.  Martin,  14  Lea  (Tenn.)  Bros.  v.  Gaertner,   106  Ky.  481,  50 

92,  52  Am.  R.  167;  Salisbury  v.  Shir-  S.  W.  971;   Readey  v.  American  &c. 

ley,  66  Cal.  223,  5  Pac.  104;  Wills  v.  Co.,    60    111.    App.    501;     Hintze    v. 

Summers,  45  Minn.  90,  47  N.  W.  463.  Thomas,  7  Md.  346;  Nickel  v.  Brown, 

="'Huddell,   In  re,    (Pa.),  10  Am.  75  Md.  172,  23  Atl.  736;  Donelson  v. 

St.  559,  n.  Polk,  64  Md.  501,  2  Atl.  824;   Reid 

"'  Blachford   v.   Frenzer,   44   Neb.  v.   John  F.  Wiessner   Brewing  Co., 

829,  62  N.  W.  1101.  88  Md.  234,  40  Atl.  877;    Durand  v. 

"»Dunn  V.  Barton,  16  Fla.  765.  Curtis,  57  N.  Y.  7;  Jacques  v.  Short, 

"'"Smith  V.   Ingram,   90   Ala.   529,  20  Barb.  (N.  Y.)  269;  Davis  v.  Mor- 

8  So.  144;   Johnson  v.  Sherman,  15  ris,  36  N.  Y.  569;  Grundin  v.  Carter, 

Cal.  287,  76  Am.  Dec.   481;    Sexton  99  Mass.  15;    Sanders  v.  Partridge, 


521  EIGHTS  AMD   LIABILITIES   OF   PARTIES.  [§    456 

taining  his  leave;  and  notwithstanding  a  condition  in  the  original 
lease  that  the  lessee  shall  not  assign  without  the  license  of  the  lessor.^^^ 
In  one  case  the  illustration  was  put  that  if  an  assignee  of  a  lease  kept 
possession  of  the  premises  out  of  which  he  made  a  profit  and  assigned 
to  a  beggar,  he  would  thereby  completely  relieve  himself  from  all 
liability  for  rent  as  assignee  of  the  term,  so  strongly  is  it  held  that 
the  liability  is  only  by  reason  of  the  privity  of  estate  and  not  at  all 
by  reason  of  the  possession.^®-  However,  the  assignee  of  a  lease  can- 
not discharge  his  liability  to  pay  the  rent  reserved  by  anything  short 
of  an  actual  absolute  transfer  of  the  unexpired  term.^®^  So,  a  transfer 
of  a  leasehold  interest  by  the  assignee  three  days  before  rent  ac- 
crued, not  accompanied  by  a  transfer  of  possession,  was  held  not  to 
destroy  the  assignee's  privity  of  estate.  The  assignee  remained  in 
possession,  and  by  claiming  and  receiving  subsequently  accruing  rent 
from  an  undertenant,  he  had  the  beneficial  enjoyment  when  the  cove- 
nant to  pay  rent  to  the  lessor  was  broken.  ''Under  such  circum- 
stances," said  the  Pennsylvania  Court,  "the  privity  out  of  which  his 
liability  to  pay  arose  was  not  destroyed  by  the  assignment."^®* 

There  must  be  a  consenting  assignee  before  an  assignment  of  a  lease 
is  complete.  An  assignment  stands  in  no  other  light  than  any  other 
contract ;  it  could  not  be  made  by  the  assignor  alone,  without  the  con- 
sent of  the  assignee.  The  delivery  of  the  lease  might  not  be  necessary, 
but  the  acceptance  of  the  assignment,  either  express  or  implied,  is 
certainly  requisite  to  its  validity. ^®^ 

Conveyance  of  an  equitable  title  by  giving  a  title  bond  is  not  such 
a  transfer  as  will  relieve  him  from  liability.  The  conveyance  must  be 
by  deed  duly  executed  and  recorded.-®^  A  person  to  whom  the  equi- 
table title  of  leasehold  property  belongs  on  the  day  rent  accrues,  is 
not  responsible  for  rent.  It  does  not  matter  how  extensive  the 
equity  may  be,  or  that  the  tenant  has  contracted  to  convey  the 
property  to  him  on  demand  and  the  full  price  has  been  paid,  so  that 
in  every  point  of  view  the  purchaser  was  the  absolute  owner  except 
as  to  the  legal  title,  there  is  still  no  responsibility  for  rent  because 

108  Mass.  556;  Taylor  v.  De  Bus,  31  ^  Negley   v.    Morgan,    46    Pa.    St. 

Ohio  St.  468;    Tibbals  v.  Iffland,  10  281,  285,  per  Strong,  J. 

Wash.  451,  39  Pac.  102.  "^^  Beattie    v.    Parrott    Silver    &c. 

^''Tibbals  v.  Iffland,  10  Wash,  451,  Co.,  7  Mont.  320,  17  Pac.  451;   May- 

39  Pac.  102.  nard    v.    Maynard,    10    Mass.    456; 

=«=  Taylor  v.  Shum,  1  B.  &  P.  21;  Townson  v.  Tickell,  3  B.  &  Aid.  31, 

Borland's  Appeal,  66  Pa.  St.  470.  5  E.  C.  L.  28. 

-*^  Trabue  v.  McAdams,  8  Bush  ^  Mayhew  v.  Hardesty,  8  Md.  479. 
(Ky.)  74. 


§•  457]  ASSIGNMENT  OF  LEASES.  522 

the  purchaser  does  not  have  the  legal  title  and  you  cannot  sue  any 
one  in  a  court  of  law  except  the  one  who  has  the  legal  title.  So,  in 
a  jurisdiction  where  a  deed  does  not  convey  legal  title  till  it  has  been 
recorded,  an  assignee  cannot  be  held  liable  at  law  on  the  covenants 
of  a  lease  till  the  instrument  of  assignment  has  been  duly  recorded.^^^ 
Nevertheless,  it  remains  true  that  a  reassignment  may  be  made  for 
the  express  purpose  of  avoiding  liability,  and  will  be  effective  to  ac- 
complish that  purpose,  even  though  a  premium  is  given  to  induce 
an  acceptance  of  the  transfer.  There  is  no  fraud  in  the  assignee  of 
a  lease  reassigning  his  interest  with  a  view  to  getting  rid  of  the 
lease;  hence,  he  may  reassign  it  to  a  beggar,  or  to  a  married  woman 
or  to  a  person  on  the  point  of  leaving  the  country.^®^  A  reassign- 
ment by  the  assignee  to  the  original  lessee  would  discharge  the 
assignee  from  the  covenants  under  the  lease.^^®  But  a  partial  assign- 
ment over  would  not  have  this  effect.-^*'  Abandonment  of  demised 
premises  by  an  assignee  does  not  operate  to  rid  him  of  this  estate 
therein,  and  consequently  as  the  liability  on  the  covenants  of  the 
lease  rests  on  privity  of  estate,  mere  abandonment,  not  destroying 
the  privity,  would  not  release  him  from  liability.-^^  And  further- 
more, it  is  true  that  even  a  valid  transfer  of  his  interest  will  not  have 
the  effect  of  discharging  an  assignee  from  liability  for  breaches  of 
covenant  already  committed.^®^ 

§  457.  The  assignee  of  a  leasehold  estate  is  not  bound  by  the  cove- 
nants of  the  lease  till  the  transfer  has  been  completed  by  his  accept- 
ance of  the  assignment.  If  the  assignment  is  made  by  the  assignor  at 
his  own  instance  or  under  an  arrangement  between  third  parties,  and 
the  assignee  has  no  knowledge  of  the  assignment  and  never  accepts 
it,  he  is  not  bound  by  it.^^^  Acceptance  by  an  assignee  of  a  general 
assignment  does  not  bind  him  as  assignee  of  a  lease,  unless  he  elects 

^'  Nickel  V.  Brown,  75  Md.  172,  23  -?"  Muldoon  v.   Hite,   6   Ky.   L.  R. 

Atl.  736.  663. 

^«  Johnson    v.    Sherman,    15    Cal.  ^"^  Bonetti  v.  Treat,  91  Cal.  223,  27 

287,  76  Am.  Dec.  481;  Tyler  v.  Gies-  Pac.  612;  Blake  v.  Sanderson,  1  Gray 

ler,   74  Mo.   App.   543;    Johnston  v.  (Mass.)  332. 

Bates,  16  Jones  &  S.    (N.  Y.)    180;  ="=  Consolidated  Coal  Co.  v.  Peers, 

Tate  V.  McCormick,  23  Hun  (N.  Y.)  150  111.  344,  37  N.  E.  937,  affirming 

218;    Tibbals   v.    Iff  land,    10   Wash.  39  111.  App.  453;  State  v.  Martin,  14 

451,  39  Pac.  102.  Lea  (Tenn.)  92. 

=^'Dengler  v.  Michelssen,  76   Cal.  ^''^  MacFarland   v.   Helm,   127   Mo. 

125,  18  Pac,  138;  Beattie  v.  Parrott  327,  29  S.  W.  1030. 
Silver  &c.  Co.,  7  Mont.  320,  17  Pac. 
451. 


523  EIGHTS  AND  LIABILITIES   OF  PARTIES.  [§   458 

to  acept  the  lease.^^*  The  devisee  of  an  unexpired  term,  who  does  not 
enter  upon  the  demised  premises  nor  in  any  way  signify  his  intention 
to  accept  the  lease,  is  not  liable  for  the  rent.  When  one  becomes 
assignee  of  a  lessee  by  operation  of  law,  he  is  not,  in  general,  charge- 
able with  the  performance  of  the  covenants  of  the  lease  until  he 
enters  or  does  some  act  showing  his  acceptance.  He  may  accept 
without  entry,  but  he  is  not  compelled  to  take  the  assignment.^^^ 
A  devisee  is  an  assignee  in  law,  and,  never  having  entered  upon  the 
d;emised  premises,  nor  done  any  act  to  signify  acceptance  of  the  lease, 
would  not  be  liable  as  assignee  upon  the  covenants  of  the  instru- 
ment.-^^ 

§  458.  An  actual  entry  by  an  assignee  upon  the  demised  premises 
is  not  necessary  in  order  that  he  should  be  bound  by  the  covenant  to 
pay  renf,  for,  by  accepting  an  interest  under  the  conveyance,  he  incurs 
the  responsibility  connected  with  the  estate.^"'^  The  cases  decide  that 
the  assignee  of  the  whole  premises  is  liable  for  the  rent  of  the  whole, 
though  only  in  possession  of  a.  part  ;^®^  that  the  assignee  of  a  separate 
part  is  liable  for  rent  only  of  the  part  assigned  ;^''^  that  rent  is  due 
from  the  assignee  of  a  lease  only  by  virtue  of  his  privity  of  estatei 
with  the  landlord  ;^''°  and  there  is  no  reason  for  holding  that  the 
assignee  of  an  undivided  interest  in  a  leasehold  is  liable  in  proportion 
to  his  possession  which  does  not  create  the  liability,  and  not  in  pro- 
portion to  his  estate,  which  does.^"^    In  an  extreme  case  an  assignee 

^^  Smith  V.  Ingram,  90  Ala.  529,  8  Bush  (Ky.)  74;  Smith  v.  Brinker, 
So.  144.  Assignees  under  general  as-  17  Mo.  148;  "Willi  v.  Dryden,  52  Mo. 
signment  may  accept  or  refuse  lease-  319;  St.  Louis  Pub.  Schools  v.  Boat- 
hold  estates  and  an  arrangement  for  men's  Ins.  Co.,  5  Mo.  App.  91;  Uni- 
the  acceptance  of  rent  from  one  versity  of  Vermont  v.  Joslyn,  21  Vt. 
until  he  exercises  his  option  will  52;  Walton  v.  Cronly,  14  Wend.  (N. 
not  amount  to  a  waiver  of  the  Y.)  63;  Williams  v.  Bosanquet,  1  B. 
breach  caused  by  the  assignment.  &  B.  238,  5  E.  C.  L.  609;  Burton  v. 
Medinah  Temple  Co.  v.  Currey,  162  Barclay,  7  Bing.  745;  Walker  v. 
111.  441,  44  N.  E.  839.  Reeves,  2  Doug.  461;  Cook  v.  Harris, 

^'"Whitcomb  v.  Starkey,  63  N.  H.  1  Ld.  Raym.  367. 

607,  4  Atl.  793;  Williams  v.  Bosan-  ^98  j^ggjgy   y    Morgan,   46    Pa.    St. 

quet,  1  B.  &  B.  238.  281. 

='''Whitcomb  v.  Starkey,  63  N.  H.  -"^"Astor  v.  Miller,  2  Paige  (N.  Y.) 

607,  4  Atl.  793.  68,  78;   Van  Rensselaer  v.  Jones,  2 

'"Benedict  v.  Everard,   73   Conn.  Barb.  (N.  Y.)  643,653. 

157,  46  Atl.  870;  Babcock  v.  Scoville,  =»' Taylor  v.  Shum,  1  B.  &  P.  21. 

56  111.  461;  Edmonds  v.  Mounsey,  15  ^oi  g,.    Louis  Pub.  Schools  v.  Boat- 

Ind.  App.  399,  44  N.  E.  196;   Breck-  men's  Ins.  So.,  5  Mo.  App.  91;   Bab- 

enridge  v.  Parrott,  15  Ind.  App.  411,  cock  v.  Scoville,  56  111.  461. 
44  N.  E.  66;  Trabue  v.  McAdams,  8 


§   458]  ASSIGNMENT  OF  LEASES.  534 

under  an  assignment  indorsed  on  a  lease  was  held  liable  on  the  cove- 
nants for  payment  of  rent,  although  neither  the  lessee  nor  assignee 
occupied  under  the  lease  and  the  rent  was  collected  from  sub-tenants 
by  an  agent  of  the  lessee.^**^ 

One  decision  has  been  found  which  seems  inconsistent  with  the 
foregoing  rule.  There  the  assignee  of  an  undivided  interest  in  a  lease- 
hold, in  possession  of  the  whole,  was  held  liable  for  the  entire  rent, 
to  the  exclusion  of  the  assignee  and  owner  of  a  part  interest  who 
was  out  of  possession.  The  privity  of  estate  which  creates  the 
liability  was  declared  to  be  one  of  actual  possession  and  enjoyment.^"^ 
And  in  another  case  in  the  same  jurisdiction  it  has  been  asserted  that 
possession  is  the  foundation  and  boundary  of  the  liability  of  the 
assignee.^"* 

The  assignment  of  a  lease  for  the  whole  term,  whether  absolute,  or 
subject  to  a  proviso  for  reassignment  in  a  certain  event,  is,  as  far  as 
concerns  the  interest  to  be  transferred,  exactly  the  same.  The  whole 
interest  is  assigned  and  the  whole  is  to  be  reassigned;  it  vests  abso- 
lutely, till  such  reassignment,  in  the  party  who  is  to  reassign,  and  is 
not  less  absolute  because,  by  agreement  between  the  immediate 
parties,  the  assignor  may  entitle  himself  to  a  reconveyance  of  the 
term.  In  the  intermediate  time,  or  till  such  reassignment,  the  as- 
signee stands  in  the  shoes  of  the  assignor  and  is,  as  against  the  lessor, 
subject  to  all  the  liabilities  created  by  the  lease.  So  that  if  in  one 
case,  he  is  liable  without  entry  or  occupation,  he  is  equally  so  in  the 
other.^"^  Lord  Thurlow  said  it  was  no  matter  whether  the  person 
sued  as  assignee  took  the  lease  as  a  pledge  or  as  a  purchase,  he  could 
not  take  the  estate  without  taking  the  burden.^"® 

In  Missouri  and  New  York  the  doctrine  of  making  a  distinction 
between  absolute  assignments  and  those  by  way  of  mortgage,  which 
was  advanced  in  the  early  English  cases  and  subsequently  discarded, 
seems  to  be  still  law.  Possession  in  the  assignee  is  necessary  in 
those  states  in  order  to  create  a  liability  to  pay  rent;  the  assignee 

20=  Sanders  V.  Partridge,  108  Mass.  merford,  1  Ves.  Jr.  235;   McMurphy 

556.  V.   Minot,  4  N.  H.   251;    Dartmouth 

^o^"  Damainville  v.  Mann,  32  N.  Y.  College  v.  Clough,  8  N.  H.  22;  Farm- 

197_  ers'   Bank  v.  Mutual  Assur.  Soc,  4 

3°*  Carter    v.    Hammett,    18    Barb.  Leigh  (Va.)  69;  Mayhew  v.  Hardes- 

(N.  Y.)  608.  ty,   8   Md.   479;    Eaton  v.   Jaques,  2 

^"'Williams  v.  Bosanquet,  1  B.  &  Doug.  455,  holding  the  contrary,  is 

B.  238,  262,  5  E.  C.  L.  609;  Sparkes  expressly  overruled. 
v.  Smith,  2  Vern.  275;  Pilkington  v.         ^"^  Lucas  v.  Comerford,  1  Ves.  Jr.^ 

Shaller,  2  Vern.  374;    Lucas  v.  Co-  235. 


525  EIGHTS   AND   LIABILITIES   OF   PARTIES.  [§'   459 

must  be  in  a  position  to  receive  the  benefits,  before  he  can  be  made 
to  suffer  the  burden.  Possession  is  the  basis  of  his  liability.  But 
this  applies  only  to  transfers  by  way  of  security  where  possession 
is  not  taken  by  the  assignee.^"'^ 

However,  as  regards  third  persons  the  rights  of  an  assignee  are 
not  complete  till  he  enters  into  possession  of  the  premises.  Prior  to 
entry  he  may  maintain  ejectment  to  recover  possession  of  the  lease- 
hold estate,  but  he  cannot  maintain  trespass  in  respect  to  the  premises 
unless  he  has  actually  entered  into  possession  of  them.^"®  A  lienor,  buy- 
ing at  the  sale  under  proceeding  to  enforce  his  lien,  does  not  become  an 
assignee  liable  on  the  covenants  of  the  lease.^°^ 

§  459.  Who  are  entitled  as  assignees  of  the  reversion. — The  pre- 
vailing rule  as  stated  in  the  preceding  section,  is  that  a  mortgagee  of 
a  leasehold  estate,  whether  in  or  out  of  possession  is  an  assignee  of 
the  lease  and  as  such  is  liable  on  all  the  covenants  which  run  with 
the  land.  It  has  been  held,  however,  in  a  jurisdiction  where  a  mort- 
gage does  not  convey  the  legal  estate,  that  a  mortgagee  of  the  re- 
version would  not  be  liable  to  a  lessee  upon  the  covenants  of  a 
lease.  The  mortgage  created  no  privity  between  the  parties.  It 
passed  no  estate  in  the  land,  but  gave  only  a  lien.^^"  It  was  claimed 
to  be  different  with  a  mortgagee  in  possession,  and  that  he  had  such 
an  estate  as  would  make  him  liable  upon  covenants  running  with  the 
land.  In  New  York  the  law  is  that  when  the  mortgagee  takes  pos- 
session, he  then  has  all  the  right,  title,  and  interest  of  the  mort- 
gagor.^" In  California,  on  the  other  hand,  it  is  held  that  the  in- 
terest of  a  mortgagee  in  possession  is  the  same  as  that  of  one  out  of 
possession.^ ^^  The  Minnesota  court  passing  upon  this  question  were 
of  opinion  that  the  decisions  in  California  were  in  accordance  with 
the  better  reason.  The  mere  act  of  the  parties,  of  going  into  pos- 
session and  consenting  to  or  acquiescing  in  it  could  not  have  the  effect 
to  pass  the  mortgagor's  estate  to  the  mortgagee.  The  fact  that  pos- 
session is  added  cannot  change  the  lien  of  a  mortgage  into  an  estate.^^^ 

'"Smith  V.  Brinker,  17  Mo.  148;  '^^  Cargil   v.   Thompson,   57   Minn. 

Willi  V.  Dryden,  52  Mo.  319;  McKee  534,  59  N.  W.  638. 

v.  Angelrodt,  16  Mo.   283;    Tallman  =="  Astor  v.  Hoyt,  5  Wend.  (N.  Y.) 

V.  Bresler,  56  N.  Y.  635,  affirming  65  603;  Moffatt  v.  Smith,  4  N.  Y.  126. 

Barb.  (N.  Y.)  369.  "=  Johnson    v.    Sherman,    15    Cal. 

'"'Ryan  v.  Clark,  14  A.  &  E.  N.  S.  287;   Button  v.  Warschauer,  21  Cal. 

65,  73,  68  E.  C.  L.  65;    Harrison  v.  609. 

Blackburn,  17  C.  B.  N.  S.  678,  112  E.  ""'  Cargil   v.    Thompson,    57    Minn. 

C.  L.  678.  534,  59  N.  W.  638. 

'"*  Merchants'     Ins.     Co.     v.     Ma- 
zange,  22  Ala.  168 


§    460]  ASSIGNMENT  OF  LEASES.  526 

A  grantee  of  a  reversion  acquires  only  a  right  of  action  for  a  sub- 
sequent breach  of  the  terms  of  letting,  but  none  for  a  breach  occurring 
prior  to  the  conveyance.  The  purchaser  in  such  ease  acquires  only  a 
right  to  the  premises  in  the  condition  in  which  they  are  at  the  time 
of  the  conveyance.^^*  So  the  assignee  is  only  liable  for  breaches  of 
covenant  during  such  time  as  he  continues  to  hold  the  reversionary 
interest.^^^ 

§  460.  An  assignee  of  part  of  leased  premises  is  liable  for  his  pro 
rata  share  of  the  rent  reserved  in  the  lease,  but  he  is  not  liable  for  the 
entire  rent.^^®  Where  a  covenant  running  with  the  land  is  divisible 
in  its  nature,  if  the  entire  interest  in  different  parcels  of  the  land 
passes  by  assignment  to  different  individuals,  the  covenant  will  at- 
tach upon  each  parcel  pro  tanto,  and  the  assignee  will  be  answerable 
for  his  proportion  only  of  any  charge  upon  the  land,  which  was  a  com- 
mon burden  upon  the  whole.^^^  If  the  landlord  seeks  to  recover  of 
an  assignee  for  a  part  of  the  permises  according  to  the  value  of  the 
land,  it  is  the  business  of  the  jury  on  evidence  produced  to  appor- 
tion the  rent  to  the  value  of  the  land.^^^ 

The  case  is  somewhat  different  where  an  assignee  of  a  portion  of  a 
leasehold  estate  has  no  entire  interest  in  any  part  of  the  premises, 
but  a  partial  undivided  interest  in  the  whole,  as  where  separate  deeds 
of  assignment  of  individed  thirds  were  executed  by  the  lessee.  These 
three  assignees  held  the  entire  interest  of  the  original  lessee,  not  as 
joint  purchasers,  but  by  separate  deeds  of  assignment,  each  of  them  an 
undivided  third.  If  no  one  of  them  has  taken  actual  possession,  tliey 
are  not  jointly  liable  for  the  whole  rent,  but  each  assignee  is  severally 
liable  for  a  part  only,  according  to  his  interest  in  the  premises  as 
compared  with  the  whole  interest  under  the  lease.^^^  So,  where  a 
lease  was  made  to  two  and  one  assigned  his  interest,  the  assignee  was 

^"Haeussler  v.  Holman  &c.  Co.,  49  (N.  Y.)  643,  653;  Lansing  v.  Van  Al- 

Mo.  App.  631.  styne,  2  Wend.  (N.  Y.)  561;  Steven- 

^^  Bailey   v.    Richardson,    66    Cal.  son  v.  Lambard,  2  East  575. 

416,  5  Pac.  910.  '"  Van    Home   v.    Grain,   1   Paige 

^"  Hogg  v.  Reynolds,  61  Neb.  758,  (N.    Y.)     455;     Astor    v.    Miller,    2 

86   N.   W.   479;    Van   Rensselaer   v.  Paige    (N.    Y.)    68,    78;    Harris    v. 

Bradley,  3  Denio   (N.  Y.)  135;   Ful-  Frank,    52    Miss.    155;    Babcock   v. 

ton  V.  Stuart,  2  Ohio  216;  Curtis  v.  Scoville,   56    111.   461;    Stevenson  v. 

Spitty,  1  Bing.  N.  C.  756;  Woodhull  Lambard,  2  East  575. 

v.    Rosenthal,   61    N.   Y.    382;    Bab-  ^'^  Van    Rensselaer   v.    Bradley,   Z^ 

cock  V.  Scoville,  56  111.  461;   Astor  Denio  (N.  Y.)  135.  §  668. 

V.  Miller,   2  Paige    (N.  Y.)    68,  78;  "» Babcock  v.  Scoville,  56  111.  461. 
Van   Rensselaer   v.    Jones,    2   Barb. 


527  EIGHTS  AND  LIABILITIES  OF  PARTIES.  [§    461 

liable  only  for  one-half  the  rent  because  he  is  liable  onh^  on  the 
circumstance  of  privity  of  estate  and  not  because  he  is  in  possession. 
If  a  lease  is  made  to  two,  the  lessor  and  lessees  are  privies  in  estate 
as  well  as  privies  in  contract.  Each  lessee  is  in  privity  of  estate  with 
the  lessor  as  to  one  undivided  half  of  the  leasehold,  and  no  more, 
because  the  two  halves  together  make  the  whole  estate.  Where  one 
of  these  lessees  assigns,  the  other  lessee  remains  in  privity  of  estate 
with  the  landlord  only  for  the  half  which  remains.  As  he  is  liable 
by  virtue  of 'this  privity,  it  would  seem  that  he  should  be  liable  only 
in  proportion  to  it.  As  he  is  privy  as  to  one-half,  he  should  pay  rent 
for  one-half  and  no  more.  His  estate  in  the  land  is  the  ground  of 
liability  and  this  estate  remains  the  same,  whether  he  is  in  actual 
possession  of  all  the  property  leased  or  a  part  of  it,  or  has  no  actual 
possession  at  all.  Where  the  assignee  holds  in  severalty,  it  has  never 
been  questioned  that  he  is  liable  only  for  the  rent  of  his  separate 
part  of  the  premises;  and  where  he  has  an  undivided  interest  in  the 
whole  leasehold,  no  reason  is  apparent  for  any  different  rule.^^° 

The  foregoing  reasoning  would  seem  not  to  include  covenants  for 
the  performance  of  acts  other  than  the  payment  of  rent,  such  as  the 
covenant  to  surrender  possession  at  the  end  of  the  term.  Conse- 
quently, an  action  for  breach  of  a  covenant  to  deliver  up  possession 
was  successfully  maintained  against  assignees  of  undivided  interests 
in  a  term  for  years.  While  assignees  of  a  leasehold  as  tenants  in  com- 
mon, they  are  jointly  and  severally  liable  on  covenants  to  repair  and 
yield  up  possession  at  the  end  of  the  term.  If  they  are  not  jointly  and 
severally  liable,  one  tenant  in  common  owning  a  small  undivided  inter- 
est might  prevent  the  delivery  of  the  property  in  its  entirety.  While 
one  of  the  tenants  in  common  remains,  the  unity  of  possession  is  un- 
divided, and  as  to  those  at  least  who  continue  in  possession,  the  unity 
of  obligation  flows  from  unity  of  possession.  Assignees  of  undivided 
and  unequal  interests  in  a  lease,  while  holding  as  tenants  in  com- 
mon, are  jointly  and  severally  liable  on  covenants  in  the  lease  to  re- 
pair and  deliver  up  the  demised  premises  at  the  end  of  the  term.  Such 
covenants  run  with  the  land,  while  the  personal  privity  of  contract 
between  the  lessor  and  the  lessee  remains  unaffected.^^^ 

§  461.  Where  a  lessee  makes  a  general  assignment  of  all  his  prop- 
erty of  every  sort  and  description  for  the  benefit  of  his  creditors,  it  is 
sufficiently  comprehensive  to  pass  to  the  trustee  or  assignee  the  grant- 

'■'  St.  Louis  Pub.  Schools  v.  Boat-  '''  Coburn  v.  Goodall,  72  Cal.  498, 
men's  Ins.  Co.,  5  Mo.  App.  91.  14  Pac.  190. 


§    461]  ASSIGXMEXT   OF  LEASES  538 

or's  interest  in  the  term.  But  the  trustee  is  not  bound  to  accept  such 
a  transfer  of  the  term;  he  has  his  election  to  take  it  or  not  accord- 
ing to  the  best  interest  of  the  creditors,  and  unless  he  elects  to  take  it 
or  goes  into  possession  and  occupies  the  premises  he  will  not  be  bound 
by  the  covenants  of  the  lease.^^^  It  has  been  uniformly  held  that  an 
assignee  for  the  benefit  of  creditors  may  accept  the  assignment  and 
enter  upon  the  execution  of  the  trust  without  becoming  the  assignee 
of  the  lease  held  by  the  insolvents,  unless  he  elects  to  do  so.^^^  The 
failure  of  the  assignor  to  enumerate  property  in  the  inventory  does 
not  have  the  effect  of  limiting  the  grant  so  that  leasehold  property  of 
the  debtor  comprehended  within  the  general  terms  of  the  deed  shall 
not  pass  by  the  deed.^-*  Just  when  the  assignee  will  be  held  to  have 
accepted  the  lease  and  bound  himself  to  perform  its  covenants  is  a 
matter  of  doubt,  and  no  general  rule  can  be  laid  down  as  to  the  effect 
of  specific  acts  of  the  assignee  in  determining  whether  there  has  been 
an  election  to  take  the  leasehold  as  a  part  of  the  assigned  property. 
An  examination  of  the  adjudged  cases  is  valuable  as  fixing  the  general 
principle  by  which  they  are  governed.  This  general  principle  seems 
to  be  that  the  assignee  will  not  be  held  to  have  accepted  the  lease, 
unless  it  be  shown  that  he  has  done  so  expressly,  or  by  unequivocal 
acts  inconsistent  with  the  right  of  entry  by  the  landlord,  has  indicated 
an  election  to  appropriate  the  leasehold  estate.^^^  Lord  Ellenborough 
held  in  one  case  that  the  allowing  of  the  bankrupt's  cows  to  remain 
on  a  leased  farm  for  two  days  and  ordering  them  to  be  milked  there, 
was  an  adoption  of  the  demise  so  as  to  make  the  assignees  the  tenants 
of  the  lessor.^ ^^  In  another  case  Chief  Justice  Abbot  held  that  the  as- 
signee elected  to  accept  the  lease  by  using  the  premises  for  the  benefit 
of  the  creditors.^^'^   These  cases  establish  the  position  that  taking  pos- 

'^  Smith  V.  Ingram,  90  Ala.  529,  8  son  v.  Stevenson,  1  B.  &  Aid.  303; 

So.  144;   Dorrance  v.  Jones,  27  Ala.  Medinah  Temple  Co.  v.  Curry,  162 

630;  White  v.  Griffing,  44  Conn.  437;  111.  441,  44  N.  E.  839. 

Horwitz  V.  Davis,  16  Md.  313;  Boyce  '"Smith  v.  Goodman,  149  111.  75, 

V.  Bakewell,  37  Mo.  492;    Carter  v.  36   N.    E.    621;    Martin   v.    Black,    9 

Hammett,  12  Barb.  (N.  Y.)  253,263;  Paige   (N.  Y.)   641,  644;   Washburn, 

Commonwealth  v.  Franklin  Ins.  Co.,  In  re,  11  Nat.  Bank  Reg.  66;   Jour- 

115  Mass.  278;    Faxon,  Ex  parte,  1  neay  v.   Brackley,   1  Hilt.    (N.   Y.) 

How.     (U.     S.)     404;     Copeland    v.  447. 

Stephens,  1  B.  &  Aid.  593;   Turner  '=*  Smith  v.  Goodman,  149  111.  75, 

v.  Richardson,  7  East   336;    Gibson  36  N.  E.  621. 

V.  Courthope,  1  D.  &  R.  205,  16  E.  C.  ""-^  Smith  v.  Goodman,  149  111.  75, 

L.  33;  Wheeler  v.  Bramah,  3  Camp.  35  N.  E.  621. 

340;  Thomas  v.  Pemberton,  7  Taunt.  ==nVelch  v.  Myers,  4  Camp.  368. 

206;  Hill  v.  Dobie,  8  Taunt.  325;  An-  =-"^  Clark  v.  Hume,  Ry.  &  M.  207. 
sell  V.  Robson,  2  Cr.  &  J.  610;  Han- 


m. 


529  RIGHTS   AND  LIABILITIES    OF   PARTIES.  [§    463 

session  of  the  leasehold  estate,  and  holding  it  for  the  benefit  of  the 
creditors,  though  for  ever  so  short  a  time,  by  virtue  of  the  assign- 
ment, is  the  true  test.  This  does  not  mean  that  if  the  assignee  entered 
only  for  the  purpose  of  obtaining  possession  of  goods,  it  would  be  an 
acceptance,  for  that  would,  in  no  just  sense,  be  taking  possession  of 
the  premises.  But  if  an  assignee  took  possession  of  a  store  to  use  it  as 
a  place  to  sell  the  goods,  it  falls  directly  within  the  principle  of  the 
cases  referred  to.  If  that  was  the  object,  it  is  immaterial  how  long 
the  possession  was  retained,  as  when  once  the  election  was  made  the 
assignee  could  not  recede  from  it.^^^  Carrying  on  business  on  the 
premises^-^  or  intermeddling  with  the  farm  land  of  a  bankrupt^ ^"^  has 
been  held  sufficient  to  establish  an  acceptance  by  the  assignee.  If  an 
assignee  assumes  to  dispose  of  a  leasehold  estate  by  sale,  that  amounts 
to  an  acceptance.  It  is  difficult  to  see  how  an  assignee  in  bankruptcy 
can  sell  the  lease  of  the  bankrupt  and  receive  therefor  money  for  the 
benefit  of  the  creditors,  without  accepting  the  assignment  of  the 
lease.^^^ 

§  462.  The  assumption  by  an  assignee  of  a  lease  of  all  the  obliga- 
tions and  liabilities  of  the  assignor,  creates  a  privity  of  contract  as 
well  as  privity  of  estate  between  the  lessor  and  the  assignee;  so  that 
where  the  assignee  of  the  lease  at  the  time  of  the  assignment  covenants 
under  seal  to  assume  all  the  covenants  of  the  original  lessor,  he  remains 
liable  on  the  covenants  of  the  lease  after  an  assignment  over  just  as 
if  he  were  an  original  lessee,  bound  by  express  covenants. ^^^  It  is 
clear  that  the  assignee  may  by  contract  between  himself  and  the  lessor 
bind  himself  to  the  full  performance  of  all  the  covenants  of  the  lease, 
irrespective  of  the  fact  whether  he  parts  with  the  title  thereafter  by 
a  further  assignment,  or  whether  he  ever  enters  into  possession  him- 
self. That  the  memorandum  of  assignment  is  a  valid,  independent 
contract,  if  supported  by  a  sufficient  consideration,  cannot  be  gainsaid ; 
failure  to  name  the  lessor  as  a  promisee  in  the  memorandum  is  imma- 

'^Dorrance  v.  Jones,  27  Ala.  630;  218,  62  N.  E.  542,  93  111.  App.  260; 

Horwitz  V.  Davis,  16  Md.  313.  Consumer's  Ice  Co.  v.  Bixler,  84  Md. 

'=^  Clark  v.  Hume,  Ry.  &  M.  207.  437,     35     Atl.     1086;      Llndsley     v. 

^'"Thomas  v.  Pemberton,  7  Taunt.  Schnaider   Brew.   Co.,    59   Mo.   App. 

206.  271;   Wilson  v.  Lunt,  11  Colo.  App. 

''1  White  V.  Griffing,  44  Conn.  437,  56,  52  Pac.  296;  Adreon  v.  Hawkins, 

449;  Hastings  v.  Wilson,  Holt  N.  P.  4  H.  &  J.    (Md.)    319;    Rawlings  v. 

290.     See  also.   Turner  v.   Richard-  Duvall,  4  H.  &  McH.  (Md.)  1;  Iggul- 

son,  7  East  336.  den  v.  May,  9  Ves.  325,  330. 

===  Springer   v.   De   Wolf,    194    111. 
Jones  L,  &  T.— 34 


§    462]  ASSIGXIMEXT  OF  LEASES.  530 

terial.  A  seal  affixed  to  a  contract  of  assignment  would  furnish,  tech- 
nical consideration.  Moreover,  the  fact  that  it  was  optional  with  the 
lessor  to  consent  to  the  assignment  and  that  the  lessor  consented, 
presumably  on  the  faith  of  the  independent  contract,  furnishes  a 
substantial  consideration.  The  memorandum,  therefore,  establishes 
a  privity  of  contract  between  the  lessor  and  assignee  which  can  only 
be  terminated  by  the  joint  action  of  both  parties.  It  recites  that  the 
transfer  is  subject  to  all  the  covenants  in  the  lease,  and  accepted  by 
the  assignee  with  all  the  responsibilities  for  the  faithful  performance 
of  the  covenants  of  the  lease.  Any  other  reading  of  the  memorandum 
would  be  devoid  of  meaning.^^^  The  true  basis  on  which  an  assignee's 
liability  to  the  lessor  can  be  maintained  is  the  principle  so  often  an- 
nounced in  modern  cases  that  where  one  makes  a  promise  to  pay 
another  the  debt  which  he  owes,  an  action  will  lie  by  him  for  whose 
benefit  the  promise  is  made.  It  is  a  question  of  the  application  of 
this  rule.  There  is  a  diversity  of  opinion  in  courts  of  last  resort  in 
this  country,  growing  out  of  the  particular  view  that  each  tribunal 
has  taken  as  to  the  ground  of  the  liability  of  the  grantee  who  assumes 
the  payment  of  a  mortgage  upon  the  property  conveyed  to  him ;  some 
holding  that  his  liability  depends  upon  the  equitable  doctrine  of  sub- 
rogation, and  that  the  obligation  he  assumes  can  be  enforced  only  in 
an  equitable  proceeding,  while  others  hold  that  it  arises  out  of  contract 
and  constitutes  a  legal  liability,  enforceable  in  an  action  at  law. 
Surely  if  the  grantee  may  be  sued  at  law  by  the  mortgagee  on  the 
promise  expressed,  when  it  was  made,  only  to  the  grantor,  there  can 
be  no  objection  on  principle  to  a  suit  by  the  lessor  against  the  assignee 
even  after  transfer,  and  in  the  absence  of  the  privity  of  estate  which 
might  be  essential  where  there  was  no  express  promise.  It  has  been 
so  decided,  and  there  are  many  cases  which  uphold  this  application 
of  the  doctrine.^^^  Accepting  a  deed-poll  conveying  an  interest  in  real 

^^Lindsley    v.     Schnaider    Brew,  man,  17  Mass.  400;  Hall  v.  Marston, 

Co.,  59  Mo.  App.  271;   Willi  v.  Dry-  17  Mass.  575;   Center  v.  McQuesten, 

den,  52  Mo.  319.  18  Kan.  476;  Johnson  v.  Knapp,  36 

='*  Wilson  v.  Lunt,   11  Colo.  App.  Iowa  616;  Taylor  v.  De  Bus,  31  Ohio 

56,  52  Pac.  296;  Lehow  v.  Simonton,  St.  468;  Frank  v.  Maguire,  42  Pa.  St. 

3   Colo.   346;    Green  v.   Morrison,  5  77;  Laurence  v.  Fox,  20  N.  Y.  268; 

Colo.   18;    Starbird  v.   Cranston,   24  Port  v.  Jackson,  17  Johns.   (N.  Y.) 

Colo.  20,  48  Pac.  652;   Mulvaney  v.  238.     The    supreme    court    of    Cali- 

Gross,  1  Colo.  App.  112,  27  Pac.  878;  fornia  in  an  obiter  dictum  found  in 

Brewer   v.    Dyer,    7    Cush.    (Mass.)  the  case  of  Bonetti  v.  Treat,  91  Cal. 

337;   Carnegie  v.  Morrison,  2  Mete.  223,     229,    dissent    from     the    rule 

(Mass.)   381;   Mellen  v.  Whipple,  1  stated   in  the  text.     The  assignees 

Gray    (Mass.)    317;    Arnold   v.   Ly-  "covenant,  contained  in  the  assign- 


531 


EIGHTS   AXD   LIABILITIES   OF   PARTIES. 


[§  -±62 


estate,  which  recites  an  agreement  on  the  part  of  the  grantee  to  pay 
money  for  or  on  account  of  the  grantor,  binds  him  to  perform  that 
agreement.^  ^^  No  difficulty  arises  from  the  lack  of  consideration 
for  the  assignee's  assumption  of  covenants,  as  the  transfer  of  the  lease 
is  a  sufficient  consideration  for  the  undertaking  of  the  assignee  to 
pay  rent.^^" 

The  express  covenant  of  an  assignee  to  fulfill  the  covenants  of  the 
lessee  in  the  lease  is  in  legal  effect  that  he  will  fulfill  the  unbroken 
covenants  in  said  lease;  that  he  will  from  that  time  take  the  place 
of  the  original  lessees,  and  fulfill  their  covenants.  It  would  be  a 
species  of  fraud  to  hold  him  responsible  for  the  past  neglect  or  breaches 
of  covenant  of  the  original  lessee.^^^  But  if  the  assignee  by  express 
covenant  with  the  assignor,  bind  himself  to  pay  the  rents  and  perform 
all  the  covenants  in  the  lease  contained,  and  required  to  be  done  and 
performed  on  the  part  of  the  lessee,  such  a  covenant  not  only  binds  the 
assignee  to  fulfill  the  covenants  during  his  own  time,  but  makes  him 
liable  for  breaches  before  his  time.^^^  In  an  assignment  of  certain 
leases,  the  lessee  stipulated  that  the  assignee  should  have  and  hold  the 
leases  under  the  terms  thereof,  and  under  and  subject  to  the  rents  and 
covenants  therein  reserved  and  contained  on  the  part  of  the  lessee  to  be 
paid,  kept,  done,  and  performed.  By  accepting  the  assignment  with 
that  stipulation,  and  causing  it  to  be  recorded,  and  receiving  the  leases 
thereunder,  the  assignee  became  bound  to  perform  all  the  unperformed 


ment  to  him,"  to  pay  all  rent  that 
may  fall  due,  from  time  to  time,  by 
virtue  of  the  provisions  of  the  lease, 
"and  his  entry  into  possession  as 
assignee  under  the  assignment, 
created  the  relation  of  landlord  and 
tenant  between  him  and  the  lessor, 
and  his  holding  was  by  privity  of 
estate,  and  not  by  privity  of  con- 
tract, as  claimed  by  respondent. 
The  lessor  was  not  a  party  to  nor 
was  he  in  any  way  benefited  by  the 
contract  of  assignment.  The  liabil- 
ity of  the  assignee  to  the  lessor  was, 
therefore,  created  solely  by  the 
covenant  of  the  lease  to  pay  the 
rent,  which  is  a  covenant  running 
with  the  land,  and  not  by  the  con- 
tract   of    assignment,    the    non-per- 


formance  of   which   is   enforceable 
only  by  the  lessee." 

=•3=  Edwards  v.  Spalding,  20  Mont. 
54,  49  Pac.  443. 

2^'' Pike  v.  Brown,  7  Cush.  (Mass.) 
133, 138;  Foster  v.  Atwater,  42  Conn. 
244;  Hubbard  v.  Ensign,  46  Conn. 
576;  "Woodruff  v.  Baldwin,  72  Conn. 
439,  44  Atl.  748. 

^"Townsend  v.  Scholey,  42  N.  Y. 
18;  Farmers'  Bank  v.  Mutual  Assur. 
Soc,    4    Leigh    (Va.)    69;   Tillotson 
v.  Boyd,  4  Sand.    (N.  Y.)    516,  521 
Lewes   v.   Ridge,    2    Cro.    Eliz.    863 
Grescot    v.     Green,     1     Salk.     199 
Church   Wardens  v.   Smith,  3   Bur 
1271. 

338  Farmers'  Bank  v.  Mutual  Assur 
Soc,  4  Leigh  (Va.)  69. 


I 


§    463]  ASSIGNMENT  OF  LEASES.  532 

terms  of  the  leases.  He  stepped  into  the  lessee's  shoes  and  assumed  his 
obligations.^^^ 

§  463.    What  constitutes  an  assumption  of  covenants  by  assignee. — 

Where  a  lease  was  assigned  "with  all  its  covenants,  terms  and  con- 
ditions," it  was  urged  that  this  created  a  privity  of  contract  between 
the  assignee  and  the  lessor  and  made  the  assignee  liable  on  the  cov- 
enants of  the  lease  after  he  had  reassigned  it;  but  the  court  was  of 
the  contrary  opinion.  There  was  no  undertaking,  promise  or  agree- 
ment in  express  terms  on  the  part  of  the  assignee  to  pay  the  rent 
reserved  in  the  lease.  The  assignment  of  the  lease  "with  all  its  cov- 
enants, terms  and  conditions"  had  no  wider  scope  than  a  bare  assign- 
ment, so  there  was  no  independent  agreement  binding  the  assignee 
at  all.  These  words  added  nothing  to  the  legal  effect  of  the  assign- 
ment. They  were  not  contractual  words  of  the  assignee.  They  era- 
bodied  no  promise  by  him  to  the  lessor.  They  were  simply  words  of 
description  and  not  words  of  contract,  and  they  imposed  no  greater 
obligation  on  the  assignee  than  would  have  existed,  had  they  been 
entirely  omitted  from  the  assignment.^*"  The  same  has  been  held  of 
the  words  "subject  to  the  originally  reserved  ground  rent"  in  an 
assignment;  these  are  words  of  description  merely,  and  do  not  import 
a  covenant  on  the  part  of  the  assignee  to  pay  the  ground  rent.^*^  It 
is  also  well  established  that  the  words  "subject  to  the  payment  of  rent" 
are  words  of  qualification  and  not  words  of  contract.  Such  an  ex- 
pression does  not  create  any  liability  by  the  assignee  to  indemnify 
his  assignor  for  payments  of  rent  accruing  after  the  assignee  had 
assigned  over,  and  this  whether  the  assignment  be  by  deed-poll  or 
indenture.^ *^  Taking  a  deed  to  premises  "subject  to"  the  terms  of 
a  title  bond,  or  "subject  to"  an  outstanding  mortgage  creates  no  per- 
sonal liability  on  the  grantee  to  pay  off  incumbrances.^*^  But  where 
mortgaged  land  is  conveyed  and  the  deed  of  conveyance  recites  that 
the  grantee  assumes  the  mortgage  debt,  this  imposes  a  personal  liability 
on  him  to  pay  the  mortgage  in  question.     Such  is  the  well  settled 

''*  Woodland  Oil  Co.  v.  Crawford,  '*=  Consolidated  Coal  Co.  v.  Peers, 

55  Ohio  St.  161,  44  N.  E.  1093.  166  111.  361,  46  N.  E.  1105;   Walker 

^"Reid  V.  John  F.  Wiessner  Brew-  v.  Physick,  5  Barr  (Pa.)  193. 

Ing   Co.,    88    Md.    234,   40   Atl.    877;  =«  Comstock  v.    Hitt,   37    111.    542; 

Wahl  v.  Barroll,  8  Gill.   (Md.)    288;  Hammer    v.    Johnson,    44    111.    192; 

Wolveridge  v.  Steward,  3  M.  &  Sc.  Fowler  v.  Fay,  62  111.  375;  Dean  v, 

561,  30  E.  C.  L.  521.  Walker,     107     111.     540.       But     see, 

"iWahl  v.  Barroll,  8  Gill.    (Md.)  Campbell  v.  Shrum,  3  Watts   (Pa.) 

288;  Wolveridge  v.  Steward,  3  M.  &  60. 
Sc.  561,  30  E.  C.  L.  521. 


533         CONDITIONS   AGAINST   ASSIGN:HENT   AND    SUB-LETTING.       [§    464 

law.^**  So  a  recital  in  an  assignment  of  a  lease  that  the  assignee 
assumes  the  covenants  in  the  lease  has  a  similar  effect.  It  has  been 
argued  that  the  word  "assumes"  is  not  broad  enough  to  impose  a 
personal  liability.  But  if  it  is  intended  simply  that  the  assignee  shall 
take  the  leasehold  subject  to  the  covenants  in  the  lease,  the  clause 
in  which  the  word  "assumes"  appears  is  not  necessary.  Unless  that 
word  is  used  to  impose  a  personal  liability  on  the  assignee,  it  is  wholly 
unnecessary,  and  serves  no  purpose.  A  rule  of  construction  requires 
courts  to  give  force  and  effect,  if  possible,  to  all  the  language  used. 
So  the  effect  of  the  expression  under  consideration  is  to  establish  a 
privity  of  contract  between  the  assignee  and  the  lessor.^*^  In  one 
case  an  assignment  was  made  part  of  a  leasehold  estate  created  by 
a  lease  which  showed  the  rent  annually  becoming  due  under  it 
was  payable  as  one  sum  at  one  stated  time.  In  a  separate  sentence 
came  the  agreement  that  as  part  of  the  consideration  of  the  deed  of 
assignment,  the  assignee  agreed  to  pay  the  rent  of  said  premises  that 
may  annually  become  due.  The  deed  first  recited  that  the  land  con- 
veyed by  it  was  part  of  the  leased  "premises,"  and  the  agreement  was 
to  pay  the  rent  of  "said  premises"  that  may  annually  become  due. 
The  "premises"  mentioned  in  the  agreement  were  held  to  be  not  the 
premises  conveyed  by  the  deed,  but  the  entire  leased  premises,  for 
upon  these  alone  did  any  rent  annually  become  due.  Therefore  the 
court  concluded  that  the  assignee  had  bound  himself  for  the  payment 
of  the  entire  rent  reserved  in  the  lease.^*® 

IV.     Conditions  Against  Assignment  and  Subletting. 

§  464.  A  covenant  in  a  lease  against  alienation  without  license  is 
at  least  as  old  as  Dumpor's  case,^*"  but  this  by  no  means  proves  such  a 
covenant  to  be  a  usual  one.  Though  in  the  Court  of  Exchequer  it 
was  held  that  on  an  agreement  for  a  lease,  with  all  usual  and  reason- 
able covenants,  a  covenant  not  to  under-lease  or  assign  is  implied,^*^ 
and  Lord  Kenyon  determined  that  an  agreement  for  a  lease,  with  fair 

^"Dean   v.   Walker,   107   111.    540;  71,  2  N.  C.  280;   Douglass  v.  Cross, 

Springer  v.   De   Wolf,   194   111.   218,  56  How.  Pr.   (N.  Y.)   330. 

62  N.  E.  542,  affirming  93  App.  260;  ^"Springer   v.    De    Wolf,   194    111. 

Stout  V.  Folger,  34  Iowa  71;   Drury  218,  62  N.  E.  542,  93  111.  App.  260. 

v.     Tremont     Imp.     Co.,     13     Allen  ^'^^  Woodruff  v.  Baldwin,  72  Conn. 

(Mass.)    168;    Locke  v.   Homer,   131  439,  44  Atl.  748. 

Mass.  93;   Sparkman  v.  Gove,  44  N.  ="4  Coke  119b. 

J.  L.  252;  Schley  v.  Fryer,  100  N.  Y.  '«  Polkingham   v.   Croft,  3   Anstr. 

700. 


§'   464]  ASSIGNMENT  OF  LEASES.     .  534 

and  reasonable  covenants,  implied  a  covenant  not  to  assign  or  under- 
let, without  leave  of  the  landlord  in  writing/*^  yet  it  has  been  decided 
both  by  Lord  Thurlow  and  Lord  Eldon  that  a  covenant  not  to  assign 
without  license,  does  not  come  within  the  meaning  of  a  contract  to 
give  a  lease  with  common  and  usual  covenants  without  some  more 
express  stipulation.^^"  In  this  conclusion  Sir  William  Grant  finally 
concurred,^^^  having  been  in  doubt  in  two  previous  cases  when  he  felt 
himself  bound  by  earlier  decisions.^^-  It  was  said  elsewhere  that  the 
question  of  usual  covenants  was  a  proper  subject  of  inquiry  as  to  the 
usual  and  customary  covenants  in  the  neighborhood.^^^  If  in  plain 
terms  the  lessee  agrees  not  to  underlet  or  assign  the  lease  without  the 
written  consent  of  the  lessor  and  then  follows  the  mutual  agreement 
that,  in  case  of  default  in  any  of  the  covenants  of  the  lessee,  the  lessor 
has  a  right  to  declare  the  term  ended  and  reenter ;  this  is  not  a  mere 
covenant  not  to  assign,  but  it  is  a  power  of  reentry  for  a  breach  of  a 
covenant,  and  this  has  the  force  of  a  condition.^^*  It  is  usually  true 
that,  in  the  construction  of  deeds,  courts  will  incline  to  interpret  the 
language  as  a  covenant  rather  than  as  a  condition,^^^  and  covenants 
against  assignment  or  underletting  are  not  favorably  regarded  by  the 
courts  and  are  liberally  construed  in  favor  of  the  lessses,  so  as  to  pre- 
vent the  restriction  from  extending  any  further  than  is  necessary.^^*^ 
But  the  intention  of  the  parties  to  the  instrument,  when  clearly  ascer- 
tained, must  control.^^'^  A  condition  in  a  lease  for  years  or  for  life 
that  the  lease  is  to  be  void  if  the  lessee  assigns  is  valid  and  enforce- 
able,^^* and  where  a  lease  prohibits  sub-letting,  no  valid  sub-lease  can 

=•»  Morgan  v.  Slaughter,  1  Esp.  N.  Div.  637;  Riggs  v.  Pursell,  66  N.  Y. 

P.  8.  193;  Boyd  v.  Fraternity  Hall  Assn., 

^=°  Henderson  v.  Hay,  3  Brown,  ch.  16  HI.  App.  574;   Goldsmith  v.  Wil- 

632;   Church  v.  Brown,  15  Ves.  258,  son,  68  Iowa  685,  28  N.  W.  16;   Ca- 

271.  ley  v.  Portland,  12  Colo.  App.  397, 

^^  Browne  v.  Raban,  15  Ves.  528,  56  Pac.  350;  Medinah  Temple  Co.  v. 

531.  Currey,   58    111.   App.   433;    Hutchin- 

^^=Vere   v.    Loveden,    12   Ve&    179,  son  v.  Ulrich,  145  111.  336,  34  N.  E. 

184;  Jones  v.  Jones,  12  Ves.  186,  189.  556;   Eckhart  v.  Irons,  128  111.  568, 

'==Boardman  v.  Mostyn,  6  Ves.  467,  20  N.  E.  687;  Livingston  v.  Stickles, 

471.  7  Hill  (N.  Y.)  253. 

='"Kew  v.  Trainor,  150  111.  150,  37  «'Kew  v.  Trainor,  150  111.  150,  37 

N.  E.  223,  50  111.  App.  629.  N.  E.  223,  50  App.  629. 

^==  Gallagher   v.    Herbert,    117    111.  =■'"  Roe   v.    Sales,   1   M.   &   S.    297; 

160,  7  N.  B.  511.  Hargrave  v.  King,  5   Ired.  Eq.    (N. 

'"'Presby  v.  Benjamin,  169  N.  Y.  Car.)   430;   Emery  v.  Hill,  67  N.  H. 

377,  62  N.  E.  430,  reversing  53  App.  330,  39  Atl.  266. 


535         COXDITIOXS   AGAINST   ASSIGNMENT   AND   SUB-LETTING.       [§    465 

be  made  without  the  lessor's  consent.  ^^^  Such  rights  are  recognized 
by  courts  of  equity,  and  the  sub-letting  of  an  apartment  in  an  apart- 
ment house  has  been  enjoined  where  the  lease  contained  a  covenant 
against  it.^^°  A  condition  against  sub-letting  would  only  continue  as 
long  as  the  term  lasted,  and  when  the  lessee  had  elected  to  exercise 
an  option  to  purchase  the  property,  a  second  sale  by  him  before  he 
acquired  legal  title  would  not  be  a  breach  of  the  covenant  against 
sub-letting  causing  a  forfeiture.^ •'^ 

An  ordinary  condition  against  sub-letting  authorizes  the  lessor  to 
enter  upon  the  lessee  and  terminate  the  lease  for  breach  of  condition 
and,  although  not  expressly  conferred,  a  similar  right  would  exist 
against  a  sub-tenant.  The  only  use  of  such  a  clause  to  enforce  a  for- 
feiture for  sub-letting  would  be  against  a  sub-tenant,  and  text-books 
assume  that  a  careful  landlord  will  put  it  in  his  leases.^^^  Yet  but 
one  case  is  referred  to  for  the  position  that  a  landlord  may  evict  a 
sub-tenant  under  such  a  clause,  and  in  that  case  it  was  assumed  with- 
out question.^*'^ 

In  estimating  the  value  of  a  leasehold  term  the  right  of  the  lessee 
to  sub-let  or  assign  becomes  a  material  question,  and  it  is  error  for  a 
judge  to  instruct  that  in  estimating  the  damages  sustained  by  a  lessee 
by  reason  of  being  evicted,  the  fact  that  the  lease  was  not  assignable 
without  the  lessor's  consent  was  immaterial.  The  lessee's  affairs  or 
his  purposes  might  have  been  changed,  and  it  is  manifestly  a  diminu- 
tion of  the  value  of  property  that  its  beneficial  enjoyment  must 
depend  upon  the  continuance  of  the  purposes,  condition  or  employ- 
ment of  its  possessor,  or  on  the  will  of  another  person.^*'* 

§  465.  That  an  assignment  contrary  to  a  restriction  in  a  lease  is 
not  absolutely  void  but  voidable  only  at  the  election  of  the  lessor  is  a 
well  established  general  principle.^"^  A  covenant  not  to  underlet  or 
assign  is  made  solely  for  the  benefit  of  the  lessor  or  his  assigns,  and 
he  or  they  only  can  take  advantage  of  it  and  terminate  the  estate 

'=»  Meyer    v.    Rothschild,    46    La.  ^"  Rice  v.  Baker,  2  Allen   (Mass.) 

Ann.  1174,  15  So.  383;  Emery  v.  Hill,  411. 

67  N.  H.  330,  39  Atl.  266.  '''-  Springer  v.  Chicago  &c.  Co.,  102 

=""  Barrington  &c.  Assn.  v.  Wat-  111.  App'.  294;  Betts  v.  Dick,  1  Pen- 
son,  38  Hun  (N.  Y.)  545.  new.  (Del.)   268;  Mabry  v.  Harp,  53 

'•^^Deglow  v.  Meyer,  12  Ky.  L.  R.  Kan.    398,    36    Pac.    743;    Bemis    v. 

954.  Wilder,   100   Mass.   446;    Holman  v. 

^"^Frazier    v.    Caruthers,    44    III.  Delin,    30    Ore.    428,    47    Pac.    708; 

App.  61.  Montecon  v.  Faures,  3  La.  Ann.  43. 

^•^  Arnsby  v.  Woodward,  6  B.  &  C. 
519. 


§    465]  ASSIGNMENT   OF  LEASES.  536  , 

demised  by  an  entry  for  breacli  of  the  condition.^^^  In  tlie  absence 
of  any  agreement  to  the  contrary,  however,  this  right  of  the  lessor 
may  be  transferred  and  may  be  enforced  by  one  to  whom  the  reversion 
has  been  assigned  by  the  lessor.^®^  The  clause  in  a  lease  providing 
that  the  premises  shall  not  be  assigned  without  the  written  assent  of 
the  lessors  is  clearly  for  the  benefit  of  the  lessors  only.  It  does  not 
render  the  assignment  when  otherwise  made  absolutely  void,  but  void- 
able only  at  the  option  of  the  lessors  or  their  representatives. 

Any  act  done  by  a  landlord,  knowing  of  cause  of  forfeiture,  affirm- 
ing the  existence  of  the  lease  and  recognizing  the  lessee  as  his  tenant, 
is  a  waiver  of  such  forfeiture.^®^  Where  a  lease  prohibits  the  sub- 
letting of  a  part  or  the  assignment  of  any  less  portion  than  the  whole, 
a  breach  of  such  restriction  cannot  be  taken  advantage  of  by  the  lessee. 
If  the  lessor  does  not  avoid  a  contract  of  the  prohibited  kind,  it  will 
bind  the  lessee.^^^  It  is  not  for  the  lessee  to  set  up  the  breach  of 
his  own  covenant  not  to  assign  or  sub-let,  to  defeat  the  assignee's 
right.  Such  a  stipulation  is  inserted  for  the  benefit  of  the  lessor  and 
those  claiming  under  him,  who  alone  can  take  advantage  of  any  breach. 
This  is  equally  true  whether  the  stipulation  is  in  the  form  of  a  cov- 
enant or  is  a  condition  with  a  right  of  reentry  reserved.  In  either 
case  the  lease  is  valid  till  the  lessor  has  exercised  his  right  to  terminate 
it.^'^'*  An  assignment  of  a  lease  contrary  to  its  terms  does  not  of  itself 
divest  the  leasehold  estate,  which  passes  to  the  assignee  subject  only 
to  the  lessor's  claim  for  damages  or  right  to  reenter;  and  the  assign- 
ment is  sufficient  consideration  to  support  a  promisory  note.^^^  An 
assignment  of  a  lease,  though  made  against  the  terms  of  the  instru- 
ment, passes  a  subsisting  title  to  the  assignee.  He  becomes  the 
owner  of  the  leasehold  estate,  and  as  such  would  be  liable  on  all  the 
covenants  which  run  with  the  land,  and  bound  to  pay  rent  as  long  as 
the  lease  was  allowed  to  continue.^^^ 

^*«  Shumway    v.    Collins,    6    Gray  '*"'  Willoughby  v.  Lawrence,  116  111. 

(Mass.)   227;  Montecon  v.  Faures,  3  11,  4  N.  E.  356. 

La.  Ann.  43;    Hardware  Co.  v.  Mc-  =*'°  Shattuck    v.    Lovejoy,    8    Gray 

Carty,    10    Colo.    App.    200,    209,    50  (Mass.)    204;    Bemis  v.  Wilder,   100 

Pac.  744;  Chicago  Attachment  Co.  v.  Mass.  446. 

Davis  &c.  Co.,  33  111.  App.  362;  "Web-  ^"  Spear  v.   Fuller,   8   N.   H.   174; 

ster  V.  Nichols,  104  111.  160,  affirmed,  Eldredge  v.  Bell,  64  Iowa  125,  19  N. 

25  N.  E.  669.  W.  879;  Winkler  v.  Gibson,  2  Kan. 

2"  Cordeviolle    v.    Redon,    4     La.  App.  621. 

Ann.  40.  =*'-  Spear  v.   Fuller,   8   N.    H.    174. 

'<"«  Webster  v.  Nichols,  104  111.  160;  The  case  of  Hynes  v.  Ecker,  34  Mo. 

Randol   v.    Tatum,   98   Cal.    390,   33  App.  650,  holds  that  assignees  would 

Pac.  433.  not  be  liable  for  rent  till  the  lessor 


537         CONDITIONS  AGAINST  ASSIGNMENT  AND  SUB-LETTING.       [§    466 

After  an  assignment  in  violation  of  a  condition  in  a  lease,  it  is 
incumbent  on  the  lessors  to  reenter  in  order  to  terminate  the  lease 
and  revest  the  estate  in  them ;  until  they  do  this  they  are  not  reinvested 
of  their  old  estate.^^^  So  the  owner  of  the  reversion  cannot,  by  merely 
assuming  that  the  lease  has  been  terminated  by  such  violations  of 
its  conditions,  confer  any  right  to  immediate  possession  upon  another 
by  the  execution  of  a  lease  of  the  same  premises  to  him,  without  having 
taken  any  legal  steps  to  cancel  the  prior  lease  or  to  retake  possession,^^* 
A  tenant  by  sub-letting  merely  assumes  the  risk  of  being  ousted  if  his 
landlord  does  not  acquiesce  in  the  contract ;  he  does  not  convert  him- 
self into  a  trespasser  or  an  insurer.^^^ 

It  does  not  prevent  a  recovery  of  rent  from  a  lessee  that  the  lessor 
refuses  to  give  his  written  consent  to  an  assignment  of  the  lease,  such 
consent  being  essential  to  a  valid  transfer.  Nor  is  the  refusal  to  give 
such  consent  a  ground  for  the  cancellation  of  the  lease  at  the  instance 
of  the  lessee.  Such  conduct  is  not  an  unlawful  abuse  of  the  privisions 
of  the  contract  requiring  written  consent  to  a  sub-letting.^^^ 

§  466.  An  ordinary  covenant  against  sub-letting  and  assignment 
is  not  broken  by  a  transfer  of  the  leased  premises  by  operation  of  law 
but  the  covenant  may  be  so  drawn  as  to  expressly  prohibit  such  a 
transfer,  and  in  that  case  the  lease  would  be  forfeited  by  an  assign- 
ment by  operation  of  law,^^^  Where  a  lessee  covenanted  "not  to  let, 
set,  assign,  transfer,  make  over,  barter,  exchange,  or  otherwise  part 
with  the  premises,"  and  afterwards  gave  a  warrant  of  attorney  to 
confess  Judgment,  on  which  the  lease  was  taken  in  execution  and  sold ; 
this  was  held  to  be  no  forfeiture,  for  all  the  words  used  in  the  lease 

had  given  his  assent  to  the  assign-  204;  Godfrey  v.  Black,  39  Kan.  193; 

ment    as    required    by    the    lease.  Holman  v.  De  Lin,  30  Ore.  428,  47 

"Lessees,  restrained  from  assigning  Pac.  708;  Deglow  v.  Meyer,  12  Ky.  L. 

without  leave,  can  have  assigns  only  R.  954;   Comyn's  Land.  &  Ten.  104, 

of  two  sorts,"  says  Rombauer,  P.  J.,  Co.  Lit.  214  b. 

in  the  opinion,  "either  an  assign  ap-  ^■*  Winkler  v.  Gibson,  2  Kan.  App. 

proved   by   the   landlord   or   an   as-  621. 

sign  by  appointment  or  designation  ^^  Hundley  v.  Moore,  6  Ky.  L.  R. 

of   law;    they   cannot   have    an    as-  519. 

sign  of  their  own  appointment,  un-  ^'^  Hill  v.  Rudd,  99  Ky.  178,  35  S. 

approved  by  the  landlord."     The  fal-  W.  270. 

lacy  of   this  reasoning  lies  in   the  ^"  Parks  v.  Union  Mfg.  Co.,  14  Ky. 

failure  to   distinguish   between  the  L.  R.  206;  Farnum  v.  Hefner,  92  Cal. 

power  to  assign  and  the  right  to  as-  542,  28  Pac.  602;  Jackson  v.  Corliss, 

sign.  7  Johns.  (N.  Y.)  531;  Riggs  v.  Pur- 

^' Spear  v.   Fuller,   8   N.   H.   174;  sell,  66  N.  Y.  193,  198;    Jackson  v. 

Shattuck  v.  Lovejoy,  8  Gray  (Mass.)  Silvernail,  15  Johns.  (N.  Y.)  278. 


I    466]  ASSIGXMEXT   OF  LEASES.  538 

point  to  some  act  to  be  done  by  the  tenant  himself,  and  there  is  a 
distinction  between  acts  that  the  party  does  voluntarily  and  those  that 
pass  in  invitum;  and  judgments  in  contemplation  of  law,  always  pass 
in  invitum.^''^  But  it  appearing  upon  a  second  suit  that  the  tenant 
had  given  the  warrant  of  attorney  for  the  express  purpose  of  enabling 
the  creditor  to  take  the  lease  in  execution,  this  was  held  to  be  in  fraud 
of  the  covenant,  and  therefore  a  forfeiture,  so  the  landlord  could  re- 
cover the  premises  in  ejectment  under  the  clause  of  reentry.^^'^  A 
colorable  sale  on  execution,  resorted  to  for  the  purpose  of  transferring 
the  term,  would  be  a  breach  of  a  covenant  against  voluntary  assign- 
ment.^^" It  has  also  been  held  that  the  assignees  under  a  bankruptcy 
commission  might  dispose  of  a  lease  without  incurring  a  forfeiture 
on  the  ground  that  a  commission  of  bankruptcy  is  a  statutable  execu- 
tion and  that  there  was  not  any  difference  between  the  compulsory 
cause  under  which  the  sale  was  made  in  that  case  and  a  sale  on  exe- 
cution. The  term  "assigns"  in  the  covenant  related  to  voluntary 
assigns  and  not  to  assignees  in  law.^®^  But  the  lessor  might  have 
provided  against  the  assignment  under  the  commission  by  an  express 
proviso  ;^®^  or  even  against  a  sale  on  execution.^*^  In  view  of  the 
settled  rule  that  an  assignment  by  operation  of  law  passes  a  leasehold 
estate  to  the  assignee  discharged  from  an  ordinary  covenant  against 
assignment,  the  same  result  has  been  held  to  follow  where  the  transfer 
arises  from  voluntary  proceedings  in  insolvency  as  well  as  where  the 
proceedings  are  in  invitum,  provided  there  is  no  indication  that  the 
proceedings  are  colorable,  merely,  for  the  purpose  of  effecting  the 
transfer  in  fraud  of  the  lessor.^^*  But  an  express  condition  against 
assignments  by  operation  of  law  would  be  broken  by  an  involuntary 
assignment,  such  express  mention  of  the  mode  of  assignment  being 
essential  to  cause  a  forfeiture,^ *^  and  a  breach  would  also  be  caused 
by  a  lessee's  general  assignment,  accompanied  by  the  entry  of  his 
assignee.^^®     The  clause  against  assignment  by  operation  of  law  may 

5'»  Doe  v.  Carter,  8  Term  R.  57.  ^'  Farnum  v.  Hefner,  79  Cal.  575,     ■ 

"''Doe  V.   Carter,  8    Term  R.   57;  21  Pac.  955;  Davis  v.  Eyton,  7  Bing. 

Doe  V.  Hawke,  2  East  481.  154;  Doe  v.  David,  5  Tyrw.  125. 

=^°  Farnum  V.  Hefner,  79  Cal.  575,  '«*  Smith     v.     Putnam,     3     Pick. 

21  Pac.  955.  (Mass.)    221;    Bemis  v.  Wilder,  100 

^''^Doe  V.  Bevan,   3  M.  &  S.   353;  Mass.  446. 

Sherman,  Ex  parte.  Buck  462 ;  Phil-  ^'  Farnum  v.  Hefner,  79  Cal.  575, 

pot  V.  Hoare,  Ambl.  480,  2  Atk.  219.  21  Pac.  955. 

^'=Roe  V.  Galliers,  2  Term  R.  133;  ^sa  gj^j^jj  y    Goodman,  149  111.  75, 

Doe  V.  Clarke,  8  East  185.    See  also,  36  N.  E.  621. 

Randol  v.  Scott,  110  Cal.  590,  42  Pac.  7} 

976. 


1 


539         CONDITIOXS   AGAIXST   ASSIGXMEXT   AXD   SUB-LETTIXG.       [§    467 

be  unnecessary  in  case  of  a  general  assignment,  as  it  has  been  held 
that  a  general  assignment  for  the"  benefit  of  creditors  is  a  voluntary 
assignment  and  not  one  by  operation  of  law.  The  act  by  which  the 
title  to  the  assigned  estate  is  transferred  from  the  assignor  to  the 
assignee  is  purely  voluntary  on  the  part  of  the  former.  Voluntary 
assignments  for  the  benefit  of  creditors  are  transfers  without  com- 
pulsion of  law.  They  are  termed  "voluntary"  to  distinguish  them 
from  such  as  are  made  by  compulsion  of  law,  as  under  statutes  of 
bankruptcy  and  insolvency.^*  ^  The  authorities  generally  seem  to 
sustain  the  position  that  when  an  assignment  by  the  lessee  is  a  volun- 
tary one,  the  lease  does  not  pass  to  the  assignee  by  operation  of  law, 
but  by  act  of  the  party,  and  the  distinction  in  this  regard  between 
voluntary  and  involuntary  assignments  is  well  defined.^** 

§  467.  The  rule  is  universally  admitted  that  a  covenant  not  to  as- 
sign a  lease  is  not  broken  by  an  underletting  ;3s»  but  it  is  said  that  the 
converse  of  this  is  not  true,  and  that  an  assignment  is  a  violation  of 
a  stipulation  not  to  underlet.  It  does  not  necessarily  follow  that  the 
lessor,  as  he  did  not  choose  that  the  tenant  should  assign,  therefore 
intended  to  restrain  underletting.  But,  on  the  other  hand,  it  would 
be  very  strange,  if  the  landlord  meant  to  restrain  underletting,  that 
he  should  not  mean  to  forbid  the  tenant  to  part  with  the  whole  in- 
terest.^''" So  the  rule  has  become  incorporated  in  the  text-books  that 
a  covenant  not  to  underlet  restrains  assignment.  From  this  conclu- 
sion there  has  been  a  vigorous  dissent  by  Chief  Justice  Beasley  of  the 
New  Jersey  Court.  He  points  out  that  the  doctrine  is  of  modern  origin 
and,  since  it  was  first  expounded,  has  received  no  sanction  from  the 
English  cases.  "Was  it  very  strange,"  proceeds  the  learned  Justice 
in  criticism  of  the  reason  for  the  rule,  "that  if  the  landlord  meant 
to  restrain  underletting  that  he  should  not  mean  to  forbid  the  tenants 
to  part  with  his  whole  interest.  A  person  advised  of  his  legal  position 
might  very  intelligently  do  this.  In  many  respects  an  underlease  is 
more  unfavorable  to  the  owner  of  the  land  than  an  assignment.     An 

^^Medinah  Temple  Co.  v.  Currey,  17  Johns.  (N.  Y.)  66;  Jackson  v.  Sil- 

162  111.  441,  44  N.  E.  839,  reversing  vernail,  15  Johns.   (N.  Y.)  278;  Cru- 

58  111.  App.  433.  soe  v.  Bugby,  2  W.  Bl.  766,  3  Wils. 

'■'Holland  v.  Cole,  1  H.  &  C.  67;  234;  Kinnersley  v.  Orpe,  1  Doug.  56; 

Rochford  v.  Hackman,  9  Hare  475;  Holford  v.  Hatch,  1  Doug.  183;  Har- 

Brandon  v.  Aston,  21  Eng.  Ch.  23.  grave  v.  King,  5  Ired.  Eq.  (N.  Car.) 

=^''*  Field  V.  Mills,  33  N.  J.  L.  254;  430;  Copland  v.  Parker,  4  Mich.  660. 

Moore    v.   Guardian   Trust   Co.,   173  ='"  Greenaway    v.    Adams,    12    Ves. 

Mo.  218,  73  S.  W.  143;  Den  v.  Post,  25  395;  Den  v.  Post,  25  N.  J.  L.  285. 
N.  J.  L.   285;   Jackson  v.  Harrison, 


§    467]  ASSIGNMENT   OF  LEASES.  540 

undertenant  taking  the  possession  does  not  put  himself  in  privity  of 
estate  with  the  original  lessor ;  nor  is  he  liable  to  him  for  the  perform- 
ance of  the  covenants  running  with  the  land,  such  as  the  covenant  to 
pay  rent,  or  to  keep  the  premises  in  repair.  An  assignee  of  the  lease, 
on  the  contrary,  can  claim  no  such  disconnection  or  exemption.  Is 
it  then  so  improbable  that  a  landlord  might  be  willing  to  permit  an 
assignment  and  yet  might  be  opposed  to  an  undertenancy  ?  That  he 
might  say  to  his  tenant,  'You  may  turn  over  your  whole  interest,  be- 
cause the  assignee  will,  in  point  of  estate,  be  in  privity  with  me,  and 
will  be  compellable  to  perform  the  most  important  covenants  in  the 
lease,  but  I  cannot  consent  to  receive  an  undertenant  who  will  be  a 
stranger  to  my  title  and  whom  I  can  hold  to  no  responsibility  ?'  I  am  at 
a  loss  to  perceive  anything  irrational  or  even  improbable  in  a  provision 
of  this  kind."3»i 

In  Cruesoe  v.  Bugby,^^^  the  covenant  was  that  "the  lessee,  his  ex- 
ecutors, or  administrators,  shall  not  nor  will  at  any  time  or  times 
during  this  demise,  assign,  transfer  or  set  over,  or  otherwise  do  or 
put  away  this  present  indenture  of  demise,  or  the  premises  hereby  de- 
mised or  any  part  thereof"  without  the  consent  of  the  lessor.  It  was 
held  that  this  did  not  restrain  sub-letting.  "Assign^  transfer  and  set 
over"  are  mere  words  of  assignment,  and  "otherwise  do  or  put  away" 
signifies  any  other  mode  of  getting  rid  of  the  premises  entirely  and  can- 
not be  applied  to  the  making  of  an  underlease.  "The  lessor,  if  he 
pleased,"  say  the  court,  "might  certainly  have  provided  against  the 
change  of  occupancy  as  well  as  against  an  assignment,  but  he  has  not 
done  so  by  words  which  admit  of  no  other  meaning."  But  where  the 
proviso  was  "not  to  assign  or  otherwise  part  with  the  premises  or  any 
part  thereof,  for  the  whole  or  any  part  of  the  term,"  these  words  were 
taken  to  include  an  underlease.  ^^^  A  provision  that  "the  leseee  and  his 
administrators  shall  not  set,  let  or  assign  over"  renders  it  impossible 
to  sub-let  without  incurring  a  forfeiture,  the  distinction  resting  on  the 
use  of  the  word  "let."  "The  case  of  Crusoe  v.  Bugby,"  said  Justice 
Butler  in  pronouncing  this  decision,  "though  a  pretty  strong  one, 
does  not  come  up  to  the  present  one,  for  there  the  word  let  is  not 
used;  but  that  is  a  material  word  here,  and  we  cannot  reject  it."^^* 

*"  Field  v.  Mills,  33  N.  J.  L.  254,  ^'=2  W.  Bl.  766,  3  Wils.  234. 

257.     To  same  effect  see,  Sheets  v.  ^^  Doe   v.   Worsley,    1    Camp.    20; 

Selden,   7   Wall.    (U.    S.)    416;    Liv-  Roe  v.  Sales,  1  M.  &  S.  297. 

ingston  v.  Stickles,  7  Hill    (N.  Y.)  ^^*  Roe  v.  Harrison,  2  Term  R.  425; 

253;     Fox    v.    Swann,    Styles    482;  Lynde  v.  Hough,  27  Barb.    (N.  Y.> 

Lynde  v.  Hough,  27  Barb.    (N.  Y.)  415. 
415. 


I 


541        CONDITIONS  AGAINST  ASSIGNMENT   AND  SUB-LETTING.      [§   468 

The  general  rule  might  be  stated  to  be  that  where  all  the  words  of  a 
covenant  against  assignment  could  have  distinct  effect  and  operation, 
without  referring  at  all  to  an  underlease,  underletting  is  not  for- 
bidden; but  when  some  word  or  words  in  the  covenant  necessarily 
refer  to  a  sub-lease,  sub-letting  is  forbidden. 

A  statutory  provision  against  assignment  would  not  prevent  the 
lessee  from  sub-letting  the  premises.  ^^^ 

§  468.  A  covenant  not  to  assigfn  or  sub-let  is  not  necessarily  broken 
"because  some  one  other  than  the  lessee  shares  in  the  benefits  and  ad- 
vantages of  a  leasehold  estate.  The  use  of  the  third  party  may  be 
by  virtue  of  a  mere  license,  and  a  covenant  not  to  sub-let  is  not  broken 
by  licensing  a  third  person  to  do  certain  acts  on  the  land.  In  general, 
a  grant  is  to  be  regarded  as  a  license  rather  than  a  lease  where  there 
is  no  term,  no  reservation  of  rent,  and  no  possession  conferred.^^^  / 
Therefore,  an  agreement  by  a  lessee  of  a  building  to  allow  a  third 
person,  in  consideration  of  an  annual  payment  by  him,  to  place  a 
sign  upon  the  outside  wall  of  the  building,  for  a  stated  time,  is  not  a 
breach  of  the  covenant  in  the  lease  not  to  underlet  any  part  of  the 
premises.  This  was  a  license  and  not  a  lease.  It  was  permission  to 
do  a  particular  act,  namely,  to  affix  a  sign  to  the  wall,  and  gave  no 
authority  to  do  any  other  act  on  the  premises.  The  fact  that  the 
permission  was  paid  for,  and  that  the  act  permitted  was  a  continuing 
one,  are  ordinary  elements  of  a  license.  Every  license  to  do  an  act 
upon  land  involves  the  exclusive  occupation  of  the  land  by  the  licensee, 
so  far  as  is  necessary  to  do  the  act,  and  no  further.  It  was  clearly 
the  intention  that  the  licensee  should  have  no  other  right  in  the  prem- 
ises than  to  affix  his  sign  to  them.  An  agreement  of  this  nature  can- 
not be  construed  as  a  lease.^^'^ 

Where  a  lease  provided  that  the  lessee  should  not  "release  or  assign 
his  lease  of  the  premises,"  it  was  held  that  a  mere  sub-lease  of  a  portion 
of  the  premises  for  thirt}^  days,  which  hardly  amounted  to  more  than 
a  license  to  occupy,  did  not  constitute  the  breach.^^^  In  another  case 
a  tenant  was  enjoined  not  to  sub-let  the  whole  or  assign  the  lease;  such 
language  contains  a  strong  implication  that  the  tenant  might  sub-let 
parts  of  the  premises.     In  connection  with  the  circumstance  that  at 

^^  Moore   v.   Guardian    Trust   Co.,  ="  Lowell  v.  Strahan,  145  Mass.  1, 

173  Mo.  218,  245,  73  S.  W.  143.  12  N.  B.  401,  1  Am.  St.  422. 

5""  Pence  v.  St.  Paul  &c.  R.  Co.,  28  '""  Leduke  v.  Barnett,  47  Mich.  158, 

Minn.  488,  11  N.  W.  80;  Sommers  v.  10  N.  W.  182. 
Reynolds,  103  Mich.  307,  61   N.  W. 


§    468]  ASSIGNMENT  OF  LEASES.  54^' 

the  time  the  lease  was  executed  the  lessee  was  then  sub-letting  parts 
thereof,  it  is  conclusive  that  the  parties  intended  the  sub-letting  of 
parts  less  than  the  whole.^^^  Nevertheless,  a  stipulation  in  ordinary 
form  against  underletting  would  be  broken  by  a  sub-lease  of  any  part 
of  the  demised  premises.  The  extent  of  the  premises  sub-let  would 
ordinarily  be  immaterial.*""  A  covenant  against  assignment  in  a 
lease  to  two  was  held  to  be  broken  by  an  assignment  of  the  undivided 
moiety  of  one  lessee  to  the  other  lessee.  The  covenant  though  it 
related  to  the  estate  of  the  two,  necessarily  involved  the  interest  of 
each;  it  meant  that  neither  of  them  could  assign  the  whole  or  any 
part  of  his  interest  without  consent;  otherwise  a  tenant  might  assign 
all  but  a  sixty-fourth  part.  An  assignment  of  sixty-three  parts  would 
be  a  breach  of  the  covenant.*"^ 

A  tenant  by  placing  a  servant  in  charge  of  leased  premises  dur- 
ing his  absence  does  not,  as  a  matter  of  law,  violate  a  covenant  not 
to  sub-let  without  the  landlord's  consent.  Even  under  a  liberal  con- 
struction of  the  covenant,  to  constitute  a  violation  of  the  lease,  the 
lessee  must  have  attempted  to  put  in  possession  of  the  premises  a 
new  tenant,  not  a  new  occupant.  To  be  a  tenant  a  person  must  have 
some  estate,  be  it  ever  so  little,  such  as  that  of  a  tenant  at  will  or  on 
sufferance.  A  person  may  be  in  occupation  of  real  estate  simply  as  a 
servant  or  licensee  of  liis  master.  Therefore,  if  the  lessee  sought  to 
place  his  porter  in  occupation  of  the  premises  as  caretaker  or  as  servant, 
he  was  entirely  within  his  rights.*"-  According  to  an  unofficially  re- 
ported case  in  Kentucky,  a  covenant  against  sub-letting  or  assignment 
is  not  broken  by  the  renting  of  pasture  rights  on  a  farm  after  the  crop 
has  been  gathered,  because  the  tenant  still  continues  in  possession.*"^ 

A  lease  of  a  house  to  a  single  woman  contained  the  proviso  that 
it  was  let  "only  for  herself  to  occupy  as  a  residence,"  with  covenants 
against  disposition  of  a  whole  or  any  part.  It  was  held  that  her 
marriage  to  a  widower  with  four  children  and  the  continued  residence 
of  all  in  the  house  was  not  a  breach  of  the  proviso  or  covenants.  The 
whole  instrument  taken  together  clearly  contemplated  that  the  lessee 
should  occupy  the  premises  in  person,  but  it  did  not  follow  that  the 
narrow  construction  contended  for  was  the  true  one.    That  construc- 

^  Spencer  v.  Commercial  Co.,  30  *"  Varley  v.  Coppard,  L.  R.,  7  C.  P. 

Wash.  520,  71  Pac.  53;  Roosevelt  v.  505, 

Hopkins,  33  N.  Y.  81.  *"=  Presby  v.  Benjamin,  169  N.  Y. 

'«•  Boston,  C.  &  M.  Ry.  Co.  v.  Bos-  377,  62  N.  E.  430,  reversing  53  App. 

ton  &c.  R.  Co.,  65  N.  H.  393,  451-457,  Div.  637. 

23  Atl.  529;  Emery  v.  Hill,  67  N.  H.  "' Harwood  v.   Hopkins,  4  Ky.  L. 

330,  39  Atl.  266  R.   631. 


I 


543         CONDITIONS  AGAINST   ASSIGNMENT   AND   SUB-LETTING.       [§'  469 

tion  would  exclude  every  one,  relative,  companion  and  friend,  as  well 
as  husband.  If  the  lessor  had  intended  that,  he  should  have  used  lan- 
guage clearly  expressing  such  an  intent  and  should  not  have  left  it 
to  be  inferred  from  language  of  doubtful  meaning.  The  lease  as 
drawn  could  fairly  and  reasonably  be  so  interpreted  as  to  allow  the 
lessee  to  receive  a  relative,  friend,  or  husband,  as  a  companion.*"* 

Where  a  lease  is  jointly  to  two,  and  by  an  arrangement  between 
them,  each  occupies  a  several  portion  of  the  premises,  such  several 
uses  cannot  justly  be  regarded  as  breaches  of  a  covenant  not  to 
underlet.*"^ 

§  469.  Change  in  business  relations  as  breach  of  covenant  not  to 
sub-let. — A  stock  in  trade  of  a  lessee  upon  the  leased  premises  was  sold 
on  execution  by  one  of  his  creditors,  but  the  goods  were  not  removed 
from  the  store  and  the  business  was  carried  on  therein  as  before,  by 
permission  of  the  lessee.  The  lessee  remained  in  the  store  and  con- 
ducted the  business  as  before,  except  that  the  money  received  from  sales 
went  to  the  purchaser.  The  latter  had  nothing  to  do  with  the  business 
except  to  go  to  the  store  daily  for  a  short  time  and  sign  checks.  The 
lessee  never  formally  assigned,  transferred,  or  disposed  of  his  interest 
in  the  lease.  On  this  state  of  facts  there  was  held  to  be  no  breach 
of  a  covenant  not  to  assign  or  sub-let.  The  lessee  was  there  managing 
and  controllng  the  business,  as  he  had  done  before  the  stock  was  sold ; 
certainly  he  had  not  assigned  or  parted  with  his  lease,  neither  had  he 
formally  underlet  the  leased  premises.  It  seems  clear  that  an  action 
for  a  trespass  to  the  leased  premises  would  necessarily  have  been 
brought  in  the  name  of  the  lessee  and  that  he  could  at  any  time  have 
lawfully  required  the  purchaser  to  remove  the  goods  from  the  store.*"^ 
In  another  case  a  lessee  occupied  premises  as  a  lumber  yard  and  sold 
out  his  business  to  defendant  with  an  agreement  that  defendant 
should  have  the  right  to  occupy  the  leased  premises  as  long  as  the 
lessee  himself  was  entitled  to  do  so.  It  was  held  this  was  not  a  license 
but  an  assignment  of  the  term  and  justified  the  landlord  in  terminat- 
ing the  lease.  The  arrangement  was  in  legal  effect  and  practical 
operation,  an  assignment  of  the  lease.  There  was  no  formal  assign- 
ment of  the  lease,  but  there  was  an  equitable  transfer  'of  it.  No 
greater  right  could  have  been  enjoyed,  had  there  been  a  formal  and 
regular  assignment  of  the  lease  and  premises.     The  purpose  of  the 

*^  Schroeder  v.  King,  38  Conn.  78.        ^^  Munkwitz  v.  Uhlig,  64  Wis.  380, 
*°'  Boyd  V.  Fraternity  Hall  Ass'n,     25  N.  W.  424. 
16  111.  App.  574. 


§    470]  ASSIGXMEXT  OF  LEASES.  544 

stipulation  in  the  lease  was  to  reserve  to  the  lessor  the  right  to  say 
who  should  occupy  the  premises.     By  the  stipulation  in  the  lease, 
the  lessee  was  prohibited  from  placing  any  other  person  in  possession 
of  the  premises  without  the  written  consent  of  the  lessor.     By  the 
arrangement  made  he  sold  the  right  to  use  the  premises  and  placed  the 
defendant  in  possession.*"''   Where  a  tenant  without  license  from  his 
landlord  takes  a  third  party  into  partnership  with  him  and  lets  such       u 
party  into  joint  possession  with  him,  it  is  not  a  breach  of  a  covenant     Jj 
not  to  sub-let,  even  though  the  partnership  is  formed  for  the  express    'J 
purpose  of  not  breaking  the  covenant  against  sub-letting,*"^    Yet  if 
one  of  the  new  partners  taken  into  the  firm  by  the  lessee  is  put  in 
exclusive  possession  of  a  portion  of  the  leased  premises,  that  would 
be  a  breach  of  the  covenant  not  to  assign  or  underlet.*"^    Moreover,      ; 
the  execution  of  an  instrument  of  assignment  in  ordinary  form  would 
have  the  effect  of  constituting  the  transaction  a  violation  of  the  stipula- 
tion. So  if  one  firm  is  dissolved  and  another  one  formed  and  the  lease  is 
assigned  to  the  new  partnershij)  by  the  original  one,  this  has  been  held 
a  breach  of  a  condition  against  assignment.*^"     And  in  a  case  where 
a  partnership  formed  a  corporation  and  a  firm  lease  was  assigned  to       :j 
the  new  corporation,  this  transfer  forfeited  the  lease.    The  formation 
of  the  corporation  by  the  members  of  the  old  firm  and  others  who 
were  allowed  to  become  stockholders  presents  additional  objections  to      ^ 
those  in  the  case  of  the  admission  of  new  members  to  the  firm.  As  new 
stockholders  may  acquire  control  of  the  corporation,  it  is  plain  that 
the  personal  integrity  and  carefulness  which  the  lessors  sought  to 
secure  by  the  provision  in  the  lease  against  the  lessee's  assignment 
of  it,  would  cease  and  the  recklessness  of  others  might  be  substituted ; 
and  the  lessors  would  be  deprived  of  the  security  against  careless  ^\ 
injury  to  the  property  for  which  they  stipulated.     The  change  from 
a  partnership  to  a  corporation  was  a  substantial  change  and  not  a 
mere  matter  of  form.*^^  ■ 

§  470.  Rule  in  Dumpor's  case. — In  trespass  between  Dumpor  and 
Symms  it  appeared  that  a  lease  had  been  made  with  a  proviso  that 
the  lessee  or  his  assigns  should  not  alien  the  premises  to  any  person 

"'  Indianapolis  &c.  Union  v.  Cleve-  *""  Roe  v.  Sales,  1  M.  &  S.  297.               ^ 

land  &c.  R.  Co.,  45  Ind.  281.  ""  Varley  v.   Coppard,  L.  R.,  7  C.  ^^j 

""'Boyd  V.  Fraternity  Hall  Ass'n,  P.  505. 

16    111.    App.    574;    Roe   v.    Sales,    1  "^  Emery  v.  Hill,  67  N.  H.  330,  39 

M.  &  S.  297;   Roosevelt  v.  Hopkins,  Atl.  266. 
33   N.   Y.   81;    Hargrave  v.  King,   5 
Ired.  Eq.   (N.  Car.)  430. 


f 
H 


545         CONDITIOXS   AGAINST    ASSIGXMEXT   AXD   SUB-LETTIXG.       [§    471 

or  persons,  without  the  special  license  of  the  lessors.  And  afterwards 
the  lessors  by  their  deed  licensed  the  lessee  to  alien,  or  demise  the  land 
or  any  part  of  it,  to  any  person  or  persons.  It  was  resolved  by  the  court 
after  argument  that  the  first  alienation  by  license  had  determined  the 
condition  so  that  no  alienation  which  might  afterwards  be  made  could 
break  the  proviso,  or  give  cause  of  entry  to  the  lessors,  for  the  lessors 
could  not  dispense  with  an  alienation  at  one  time  and  require  that  the 
estate  should  remain  subject  to  the  same  proviso  thereafter.*^^  Though 
disapproved  of,  this  decision  was  acted  on  for  a  long  time.  "The  profes- 
sion have  always  wondered  at  Dumpor's  case,"  said  Chief  Justice  Mans- 
field, "but  it  has  been  law  so  many  centuries  that  we  cannot  now  reverse 
it."*^^  Lord  Eldon  said:  "Though  Dumpor's  case  always  struck  me 
as  extraordinary,  it  is  the  law  of  the  land."'*^*  Accordingly,  the  case 
has  been  affirmed  by  many  subsequent  decisions,  and  was  even  carried 
further,  for  it  was  held  that  whether  the  license  to  assign  was  general 
or  particular,  as  "to  one  particular  person  subject  to  the  perform- 
ance of  the  covenants  in  the  original  lease,"  still  the  condition  was 
gone,  and  the  assignee  might  assign  without  license.*^^  At  length  the 
law  in  England  was  changed  by  act  of  Parliament  and  there  the  rule 
of  Dumpor's  case  ceased  to  be  law,  so  far  as  it  relates  to  conditions 
in  leases,  and  to  licenses  and  waivers  of  such  conditions.*^ ^ 

§  471.  In  the  United  States  the  rule  in  Dumpor's  case,  while  sub- 
ject to  some  adverse  criticism,  has  generally  been  received  as  settled 
law,  though  in  many  of  the  cases  where  the  topic  arose,  no  actual  de- 
cision upon  the  precise  point  was  necessary.*^''     A  condition  cannot 

*"  Dumpor's  Case,  4  Coke  119b.  22    Wend.    201;    Reid    v.    John    F. 

"^  Doe  v.  Bliss,  4  Taunt.  735.  Wiessner  Brew.  Co.,  88  Md.  234,  40 

"*Brummell    v.    Macpherson,    14  Atl.  877;    Siefke  v.  Koch,   31   How. 

Ves.  173.  Pr.    (N.  Y.)    383;   Lynde  v.  Hough, 

^"Brummell    v.    Macpherson,    14  27   Barb.    (N.   Y.)    415;    Murray   v. 

Ves.  173.  Harway,   56   N.   Y.   337;    Conger   v. 

"« 22   and  23  Vict.,   c.  35,  and   24  Duryee,  90  N.  Y.  594,  12  Abb.  N.  C. 

Vict.,  c.  38.  43;  Wertheimer  v.  Circuit  Judge,  83 


*"  Chipman  v.  Emeric,  5  Cal.  49 
Gannett  v.  Albree,  103  Mass.  372 
Pennock    v.    Lyons,    118    Mass.    92 


Mich.  56,  47  N.  W.  47;  Dickey  v. 
McCullough,  2  Watts  &  S.  (Pa.) 
88;     Sharon    Iron    Co.    v.    City    of 


Merrifield     v.     Cobleigh,     4     Cush.  Erie,   41   Pa.   St.   341;    McKildoe   v. 

(Mass.)    178;   Magwire  v.  Tyler,  25  Darracott,  13  Gratt.  (Va.)  278.   Ref- 

Mo.    484;    Dougherty    v.    Matthews,  erence    is    made    to    an    exhaustive 

35  Mo.   520;    Bleecker  v.   Smith,  13  article  in  7  Am.  Law  Rev.  616  for 

Wend.   (N.  Y.)    530;    Dakin  v.  Wil-  a  review  of  the  American  authori- 

liams,  17  Wend.   (N.  Y.)    447,  s.  c.  ties.     On  page  640  the  conclusions 
Jones  L.  &  T.— 35 


§■  471] 


ASSIGNMENT  OF  LEASES. 


546     t|i 


be  exempted  from  the  operation  of  the  rule  by  construing  it  to  be 
a  covenant,  and  making  it  the  foundation  of  a  personal  action  against 
the  grantee,  although  a  party  who  contracts  to  keep  a  condition  may 
be  liable  on  the  contract  after  the  condition  has  been  discharged  as 
such  by  a  waiver  of  a  particular  breach.*^^ 

An  early  case  in  New  York  inclined  to  the  view  restricting  the  rule 
in  Dumpor's  case  that  a  dispensation  is  equivalent  to  a  release,  to  nega- 
tive or  prohibitory  conditions,  which  if  broken  are  wholly  gone,  hold- 
ing it  does  not  apply  to  conditions  which,  like  a  stipulation  against 
underletting,  admits  of  a  recurrent  breach.*^^  The  New  York  Court 
of  Appeals,  however,  after  examining  at  length  the  doctrine  of  re- 
curring conditions,  almost,  if  not  entirely,  repudiated  the  distinction. 
The  covenants  continue,  but  the  particular  breach  which  is  the  cause 
of  forfeiture  does  not.  A  breach  must  consist  of  a  specific  act  or 
omission  and  continues  until  the  landlord  elects  to  affirm  or  disaffirm 
the  lease.*^°  However  this  decision  may  affect  the  law  in  New  York, 
it  is  settled  that  both  in  England  and  in  this  country  the  doctrine 
of  continuing  conditions  is  recognized  and  applied.*^^  According  to 
this  view,  it  is  no  answer  to  a  breach  of  a  covenant  not  to  underlet, 
that  the  lessor  had  waived  another  and  distinct  breach  of  such  cov- 
enant in  the  same  lease.*^^ 


of  the  writer  are  summarized  as 
follows:  "We  conceive,  therefore, 
that  we  have  shown  that  the  rule 
in  question  was  never  good  law,  of 
recognized  authority,  or  in  accord 
with  modern  decisions;  that  to 
overrule  it,  or,  rather,  to  repudiate 
its  imaginary  authority  will  not 
only  relieve  the  law  of  today  of 
an  incubus,  and  bring  our  system 
of  real  property  into  harmony  with 
common  sense,  but  will,  in  so  doing, 
involve  little  or  no  disturbance  to 
settled  estates  or  vested  titles  of 
ownership.  And,  finally,  that  the 
argument  of  long  standing,  which 
is  the  whole  and  only  ground  of 
acquiescence  in  its  authority  by 
modern  judges,  ought,  in  view  of 
these  facts,  to  avail  nothing;  as  an 
admitted  error  should  receive  no 
greater  tolerance,  merely  because  it 
is  venerable. 
*^*  Sharon  Iron  Co.  v.  City  of  Erie, 


41  Pa.  St.  341;  Dakin  v.  Williams, 
17  Wend.  (N.  Y.)  447;  Conger  v. 
Duryee,  90  N.  Y.  594,  12  Abb.  N.  C. 
43;  Dickey  v.  McCullough,  2  Watts 
&  S.  (Pa.)  88. 

""Bleecker  v.  Smith,  13  Wend. 
(N.  Y.)  530. 

*^°  Conger  v.  Duryee,  90  N.  Y.  594, 
12  Abb.  N.  C.  43. 

*^^Doe  V.  Jones,  5  Exch.  498;  Ben- 
nett V.  Herring,  3  C.  B.  N.  S.  370, 
91  E.  C.  L.  370;  Doe  v.  Shewin,  3 
Camp.  134;  Doe  v.  Ulph,  13  A.  & 
E.  N.  S.  204,  66  E.  C.  L.  204;  Pen- 
niall  v.  Harborne,  11  A.  &  E.  N.  S. 
368,  63  E.  C.  L.  368;  Wilson  v.  Wil- 
son, 14  C.  B.  616,  78  E.  C.  L.  616; 
Farwell  v.  Easton,  63  Mo.  446; 
Alexander  v.  Hodges,  41  Mich.  691, 
3  N.  W.  187. 

^-  Seaver  v.  Coburn,  10  Cush. 
(Mass.)  324;  Farr  v.  Kenyon,  20 
R.  I.  376,  39  Atl.  241. 


5-i7         CONDITIONS   AGAINST   ASSIGNMENT   AND   SUB-LETTING.       [§   472 

The  covenant  by  a  lessee  that  he  or  others  having  his  estate  in  the 
premises  will  not  assign  the  lease  without  the  written  consent  of  the 
lessor  does  not  by  its  true  construction  extend  so  far  as  to  prohibit 
a  reassignment  to  the  lessee  himself  without  a  new  and  special  consent 
of  the  lessor.  By  the  lease  itself,  the  lessor  consents  to  take  the  lessee 
as  his  tenant  for  the  full  term  mentioned  in  the  lease.  This  consent 
is  available  for  any  reassignment  to  the  original  lessee  during  the 
term.  There  is,  therefore,  no  breach  of  the  covenant.  The  statement 
that  the  reassignment  has  never  been  consented  to  means  only  that 
no  special  consent  has  been  given,  and  this  is  unnecessary.*^^ 

The  entire  destruction  of  a  condition  against  assignment  caused 
by  a  general  license  to  assign  has  been  held  not  to  be  so  far-reaching 
as  to  efEect  a  covenant  for  renewal.  It  could  not  be  insisted  that  the 
renewal  lease  be  executed  without  any  covenant  against  assigning 
or  sub-letting,  because  a  general  license  to  assign  had  been  given  during 
the  original  term.  The  covenant  in  the  case  where  this  conclusion  was 
reached  was  for  renewal  on  the  terms  of  the  executed  lease,  and  a 
waiver  of  condition  during  the  term  was  not  in  the  least  inconsistent 
with  the  contract  for  renewal  on  the  terms  of  the  executed  lease.  The 
only  estate  which  the  lessee  could  assign  or  sub-let  was  the  term  created 
by  the  original  lease,  and,  consequently,  that  estate  was  the  only  one 
in  respect  to  which  the  license  to  sub-let  or  assign  could  operate.*^* 
The  right  to  a  renewal  is  not  an  estate.*^^ 

§  472.  Special  license  to  assign  or  sub-let. — An  agreement  to  waive 
a  condition  against  one  sub-tenant  is  not  a  waiver  of  the  condition  as 
to  other  parties.  The  consent  that  this  tenant  might  enter  and  con- 
duct a  certain  business  is  a  restrictive  waiver  of  the  condition,  and 
applies  only  to  the  particular  tenant  and  to  the  business  to  be  carried 
on  by  him.  The  terms  of  the  lease  are  not  waived,  generally,  by  such 
a  waiver  of  a  condition  as  to  a  single  sub-tenant.*^^  In  one  case 
premises  were  assigned  by  consent  of  lessor  under  express  agreement 
that  the  assignee  should  not  assign  without  the  written  consent  of  the 
lessor.  The  assignee  thereby  assumed  the  position  of  the  original 
lessee,  and  the  condition  against  assignment  was  binding  on  him. 
Here  the  license  to  assign  was  expressly  limited  to  a  particular  person 
and  was  on  the  condition  that  no  further  assignment  of  the  lease 
should  be  made  without  the  written  consent  of  the  lessor ;  in  addition 

*=' McCormick      v.      Stowell,      138  "» Sutherland  v.  Goodnow,  108  111. 

Mass.  431.  528. 

"*  North    Chicago    St.    R.    Co.    v.  ^=°  Wertheimer    v.    Circuit    Judge, 

Le  Grand  Co.,  95  111.  App.  435.  83  Mich.  56,  47  N.  W.  47. 


§    473]  ASSIGXMEXT  OF   LEASES.  548 

the  assignee  covenanted  that  he  would  perform  all  the  covenants  and 
conditions  of  the  original  lease  to  be  kept  by  the  lessee.  "We  do  not 
regard  Dumpor's  case  one  which  would  control  here/'  say  the  court, 
"even  if  we  were  inclined  to  follow  it.  We  perceive  no  reason  why 
the  rule  that  a  license  once  granted  removes  the  condition,  may  not 
be  controlled  by  the  contract  of  the  parties."*^^ 

§  473.  If  an  assignee  is  led  to  act  on  the  assumption  that  the  as- 
signment will  not  be  relied  upon  as  a  ground  for  forfeiture,  the  lessor 
cannot  subsequently  enforce  the  forfeiture.*^^  Thus,  in  one  case  a 
farm  was  demised  for  a  term  of  years  on  a  contract  that  the  lessees 
should  plant  and  cultivate  a  fruit  orchard  for  a  share  of  the  crop. 
After  several  years'  occupation,  the  lessor  attempted  to  forfeit  the  lease 
for  an  assignment  in  violation  of  agreement  made  the  first  year  of  the 
lease,  but  the  court  denied  him  this  right.  "It  is  difficult  to  imagine 
a  case,"  said  the  court,  "where  the  enforcement  of  a  forfeiture  would 
be  more  unjust.  This  action  was  not  commenced  till  the  fourth  year 
after  the  execution  of  the  lease,  and  three  years  after  the  prohibited 
assignment;  and  it  is  quite  apparent  that  the  lessees  have  performed 
the  burdensome  part  of  their  contract  without  having  received  any 
substantial  remuneration.  They  created  a  valuable  property  by  pre- 
paring the  soil  and  planting  and  taking  care  of  the  trees  imtil  they 
are  about  in  a  condition  to  bear  fruit,  and  now  the  lessor  proposes  to 
take  possession  of  the  land  thus  improved  and  "appropriate,  without 
consideration,  the  results  of  this  money  and  labor."*"^ 

By  advising  a  prospective  sub-tenant  to  lease  from  the  lessee,  a  land- 
lord estops  himself  from  insisting  on  a  covenant  against  sub-letting. 
The  lessor  not  only  told  the  sub-tenant  that  he  had  leased  the  store, 
but  told  him  the  lessees  had  power  to  su1)-let,  and  begged  him  to  take 
a  sub-lease.  In  this  he  not  only  held  out  the  lessee  as  having  full 
power  of  disposition,  but  he  advised  the  sub-tenant  to  take  a  lease.*^'^ 
Where  the  owner  of  property  confers  upon  another  an  apparent  title 
to  or  power  of  disposition  over  it,  he  is  estopped  from  asserting  his 
title  as  against  an  innocent  third  party.  The  rights  of  such  third 
party  do  not  depend  upon  the  actual  authority  of  the  one  with  whom 
he  dealt,  but  upon  the  act  of  the  owner  which  precludes  him  from  dis- 
puting the  authority  he  has  apparently  conferred. ^^^ 

*^^Kew  v.  Trainor,  150  111.  150,  37  ^^'^  Randol   v.    Scott,    110   Cal.    590, 

N.  E.  223,  affirming  50  111.  App.  629.  42  Pac.  976. 

*-"«  Emery  v.  Hill,  67  N.  H.  330,  39  ^'^  Hill  v.  Wand,   47  Kan.   340.   27 

Atl.  266;    Indianapolis  &c.  Union  v.  Pac.  988. 

Cleveland  &c.  Ry.  Co.,  45  Ind.  281,  "'McNeil  v.  Tenth  Nat.  Bank,  46 

§  496.  N.  Y.  325. 


549         CONDITIONS   AGAINST   ASSIGNMENT    AND   SUB-LETTING.       [§'   473 

The  acceptance  of  rent  by  a  landlord  subsequent  to  an  underletting 
and  with  knowledge  thereof  is  a  waiver  of  the  condition  against  sub- 
letting.*^^ After  receiving  rent  of  an  assignee  with  a  knowledge  of  the 
assignment,  it  is  clear  that  the  lessor  could  not  afterwards,  consist- 
ently with  good  faith,  assert  his  right  to  enforce  a  forfeiture  for 
breach  of  a  condition  against  assignment.*^^  But  if  at  the  time  of  the 
acceptance  of  rent  he  had  no  knowledge  of  the  underletting,  the  judg- 
ment would  be  in  favor  of  the  lessor.*^*  However,  mere  tolerance  of  a 
sub-letting  is  not  tantamount  to  a  license.  A  landlord,  by  overlooking 
a  former  underletting,  does  not  waive  the  right  of  reentry  for  a  sub- 
sequent underletting.  Such  a  proposition  is  too  far-reaching  to  be 
acceptable,  for  on  that  principle,  if  a  landlord  once  knew  that  his 
premises  were  out  of  repair,  and  did  not  sue  instantly,  he  could  never 
afterward  reenter  for  a  breach  of  covenant  for  their  not  being  re- 
paired.*^^  The  acceptance  of  rent  already  accrued,  accompanied  by  an 
express  agreement  that  the  breach  of  condition  is  not  thereby  waived, 
does  not  affect  the  right  of  the  lessor  to  enter  for  a  breach  of  condition. 
There  is  nothing  inconsistent  between  the  acceptance  of  rent  due  and 
the  enforcement  of  the  right  to  enter.*^*'  The  same  principle  applies 
when  the  rent  is  payable  in  advance ;  acceptance  of  such  Tent  is  not  a 
waiver  of  forfeiture  although  a  sub-lease  has  been  made  subsequent  to 
the  time  when  the  rent  was  due,  but  during  the  time  which  was  cov- 
ered by  the  rent  payment.*^^ 

The  mere  fact  that  the  lessor  arranged  with  a  general  assignee  of 
the  lessee  for  the  payment  of  rent  during  the  time  that  he  was  using 
the  property,  without  declaring  to  accept  under  the  lease,  in  no  way 
proved  an  intention  to  waive  any  condition  of  forfeiture.  The  assignee 
had  the  right  to  accept  or  refuse  the  lease,  and  until  he  had  made  his 
election,  the  lessor  had  a  right  to  deal  with  him,  as  to  the  use  of  the 
property,  without  Teference  to  the  lease.  It  clearly  appeared  that  it 
was  nci  the  intention  of  either  party  that  the  payment  of  rent  by  the 
laSsignce  should  be  in  any  sense  a  recognition  of  his  right  to  hold  the 
property  under  the  lease.*^^ 

"'  Goodright     v.     Davids,     Cowp.  ''*  Miller  v.  Prescott,  163  Mass.  12, 

803;    Frauerman   v.    Lippincott,    39  39  N.  E,  409;- Kimball  v.  Rowland, 

Mo.  App.  478.  6  Gray   (Mass.)    224. 

*^0'Keefe    v.    Kennedy,    3    Gush.  «=>' Meath  v.  Watson,  76   111.   App. 

(Mass.)    325;    Harrington    v.    Hall,  516. 

126  Mich.  704,  86  N.  W.  153;    Ran-  *^' Medinah  Temple  Co.  v.  Currey, 

dol  v.   Tatum,  98  Cal.   390,   33   Pac.  162  111.  441,  44  N.  E.  839,  reversing 

433;  Goodright  v.  Davids,  Cowp.  803.  58  111.  App.  433. 

"*  Roe  v.  Harrison,  2  Term  R.  425. 

^''Doe  v.  Bliss,  4  Taunt.  735. 


CHAPTER   VII. 


TERMINATION"   OF    TENANCY. 


1.  Disclaimer    by    Tenant,    §§  474- 

481. 

2.  Forfeiture   for  Breach  of  Condi- 

tions, §§  482-501. 

3.  Effect  of  Non-payment  of  Rent, 

§§  502-537. 


4.  Surrender,  §§  538-553. 

5.  Restoration     of     Possession     to 

Landlord,  §§  554-566. 

6.  Emblements,  §§  567-573. 


§  474.  Introductory. — There  are  various  modes  in  which  the  hold- 
ing of  a  tenant  may  come  to  an  end.  Thus,  an  ordinary  term  for  years 
will  terminate  by  the  mere  lapse  of  time,  and  a  tenancy  from  year  to 
year  may  be  determined  at  the  commencement  of  any  of  the  recur- 
ring periods  by  giving  notice  such  as  is  required  by  statute  in  the 
jurisdiction  where  the  property  is  situated.  The  same  is  true  of  ten- 
ancies at  will  and  by  sufferance.  A  holding  of  any  kind  is  also  brought 
to  an  end  by  the  destruction  of  the  subject-matter  of  the  contract. 
When  the  subject-matter  of  a  lease  is  destroyed,  the  estate  of  both  the 
lessor  and  lessee  ends,  and  the  relation  cannot  thereafter  survive.  It 
makes  no  difference  how  or  by  whom  the  destruction  was  accomplished, 
the  result  is  the  same.  To  say  that  the  relation  of  landlord  and  tenant 
could  continue  after  the  destruction  of  the  subject-matter  is  the  same 
as  to  say  that  something  could  spring  from  and  be  maintained  by 
nothing.^ 

Furthermore,  misconduct  on  the  part  of  the  tenant  may  cause  him 
to  lose  his  right  to  claim  the  benefit  of  the  relation.  By  disclaimer 
and  repudiation  of  the  tenancy,  the  tenant  forfeits  his  rights  under  a 
lease  for  years  or  at  will.  Express  provisions  in  a  lease  may  also  give 
a  landlord  the  right  to  declare  the  termination  of  an  estate  upon  the 
tenant's  failure  to  perform  certain  covenants  or  agreements.  Such  a 
power  in  the  lessor  is  known  as  a  right  to  forfeit  for  breach  of  condi- 
tion.  Non-payment  of  rent  is  not  of  itself  a  ground  for  forfeiture  at 


^Utah  Optical  Co.  v.  Keith,  18 
Utah  464,  56  Pac.  155;  Kerr  v.  Mer- 
chants' Exch.  Co.,  3  Edw.  Ch.  (N. 
Y.)  315;  Graves  v.  Berdau,  26  N.  Y. 


498;  Winton  v.  Cornish,  5  Ohio  477; 
Shawmut  &c.  Bank  v.  City  of  Bos- 
ton, 118  Mass.  125.   See  also,  §  184. 


550 


I 


551  DISCLAIMER   BY    TENANT.  [§    474a 

common  law,  but  statutes  giving  a  landlord  the  right  to  forfeit  a  lease 
on  this  ground  on  compliance  with  certain  requisites  are  common 
throughout  the  United  States.  The  general  doctrine  regarding  the 
power  of  contracting  parties  to  rescind  their  contract  and  relieve 
themselves  of  further  liability  by  mutual  consent  applies  to  contracts 
of  lease,  and  the  only  limitation  upon  such  action  is  that  the  mode  of 
surrendering  the  leasehold  estate  shall  comply  with  the  requirements 
of  the  statute  of  frauds. 

The  phrase  "express  stipulation  terminating  a  lease"  has  been  de- 
fined to  include  a  termination  occurring  by  lapse  of  time  and  cases 
where  forfeiture  was  expressly  declared  to  follow  from  a  breach  of 
condition,  but  not  to  include  cases  where  the  effect  of  a  breach  of  con- 
dition was  left  to  inference.  That  the  lease  must  expire  "hj  reason  of 
some  express  stipulation  thereof"  was  the  language  of  the  statute 
under  construction,  not  by  inference,  not  by  operation  of  law,  but  by 
express  stipulation  of  the  parties  that  the  lease  shall  expire  or  become 
void  on  the  fulfilment  of  the  condition.  If  a  lease  be  given  on  condi- 
tion that  the  premises  should  not  be  underlet,  without  stating  what 
effect  a  breach  of  the  condition  would  have,  it  is  only  by  inference  that 
the  conclusion  is  reached  that  the  parties  intended  that  the  lease  should 
terminate  upon  the  fulfilment  of  the  condition,  because  the  common 
law  would  so  regard  it,  after  proper  steps  had  been  taken  to  terminate 
the  lease.  The  lease  contains  no  express  provision  for  its  termination 
otherwise  than  by  lapse  of  time,  and  therefore  a  Justice  of  the  peace 
would  have  no  Jurisdiction  to  entertain  such  a  question  of  forfeiture 
in  a  summary  proceeding  to  regain  the  possession  of  land.^ 

I.    Disclaimer  hi/  Tenank 

§474a.  Effect  of  repudiation  of  tenancy. — The  rule  of  the  com- 
mon law  is,  that  whenever  a  tenant  undertakes  to  disavow  his  relation- 
ship by  a  hostile  claim  of  ownership  in  himself,  this  repudiation  of  the 
loyalty  of  his  obligations  will  operate  as  a  forfeiture  of  the  lease,  at 
the  election  of  the  landlord,  who  may  proceed  to  consider  the  tenant 
as  a  stranger  and  trespasser  and  eject  him  accordingly.^   "Any  act  of 

^Lang  V.  Young,  34  Conn.  526,  v.  Burdick    83  111.  473;    Fusselman 

^Alabama:     Tillotson    v.    Doe,    5  v.  Worthington,  14  111.  135;  Wall  v. 

Ala.  407;   Wells  v.  Sheerer,  78  Ala.  Goodenough,   16   111.   415.     Indiana: 

142;  Dahm  v.  Barlow,  93  Ala.  120,  9  Tobin  v.  Young,  124  Ind.  507,  24  N. 

So.     598.       California:      Conner     v.  E.  121.    Kansas:    Douglas  v.  Ander- 

Jones,   28   Cal.   59;    Van   Winkle   v.  son,  32  Kan.  350,  4  Pac.  257;   Good- 

Hinckle,  21  Cal,  342.    Illinois:    Doty  man  v.  Malcolm,  5  Kan.  App.  285, 


47-ia] 


TERMINATIOX    OF    TENANCY. 


552 


the  lessee,"  says  Lord  Bacon,  '^by  which  he  disaffirms  or  impugns  the 
title  of  his  lessor,  occasions  a  forfeiture  of  the  lease.  For  to  every 
lease  the  law  tacitly  annexeth  a  condition  that  if  the  lessee  do  any- 
thing that  may  impair  the  interest  of  his  lessor,  the  lease  shall  be 
void,  and  the  lessor  may  reenter.  Indeed,  every  such  act  necessarily 
determines  the  relation  of  landlord  and  tenant ;  since  to  claim  under 
another  and  at  the  same  time  to  controvert  his  title,  to  hold  under  a 
lease  and  at  the  same  time  to  destroy  the  interest  out  of  which  the 
lease  ariseth,  would  be  the  most  palpable  inconsistency.  A  lessee  may 
thus  incur  a  forfeiture  of  his  estate  by  act  in  pais  or  by  matter  of 
record.  .  .  .  "*  By  a  lease  the  use  of  the  property  demised  is  con- 
ferred, and  if  the  tenant  exercises  an  act  of  ownership,  he  is  no  longer 
protected  by  his  tenancy.^ 

When  a  tenant  disclaims  to  hold  under  his  lease,  he  becomes  a  tres- 
passer, and  his  possession  is  as  adverse,  and  as.  open  to  the  action  of  his 
landlord  as  a  possession  acquired  originally  by  wrong.  The  act  is  con- 
clusive on  the  tenant.  He  cannot  revoke  his  disclaimer  and  adverse 
claim,  so  as  to  protect  himself  during  the  unexpired  term  of  the  lease. 
He  is  a  trespasser  on  him  who  has  the  legal  title.  The  relation  of 
landlord  and  tenant  is  dissolved,  and  each  party  is  to  stand  upon  his 
right.®    In  order  to  have  this  effect,  the  disloyal  acts  of  the  tenant 


4S  Pac.  439.  Kentucky:  Farrow  v. 
Edmundson,  4  B.  Mon.  605,  41  Am. 
Dec.  250;  Meraman  v.  Caldwell,  8 
B.  Mon.  32,  46  Am.  Dec.  537.  Louis- 
iana: Thayer  v.  Waples,  26  La.  Ann. 
502.  Maine:  Campbell  v.  Procter, 
6  Me,  12;  Currier  v.  Earl,  13  Me. 
216.  Michigan:  Fuller  v.  Sweet.  30 
Mich.  237,  18  Am.  R.  122;  Morse  v. 
Byam,  55  Mich.  594,  22  S.  W.  54. 
Missouri:  Stephens  v.  Brown,  56 
Mo.  23.  New  Jersey:  Van  Blarcom 
V.  Kip,  26  N.  J.  L.  351.  New  York: 
Jackson  v.  Wheeler,  6  Johns.  272; 
Jackson  v.  Thomas,  16  Johns.  293; 
Jackson  v.  Vincent,  4  Wend.  633. 
North  Carolina:  Vincent  v.  Corbin, 
85  N.  Car.  108;  Head  v.  Head,  7 
Jones  L.  620.  Pennsylvania:  New- 
man v.  Rutter,  8  Watts  51;  Willard 
v.  Earley  (Pa.),  14  Atl.  426.  South 
Carolina:  Trustees  v.  Jennings,  40 
S.  Car.  168,  42  Am.  St.  854;  Smith 
v.  Asbell,  2  Strob.  141,  146;  Trustees 


&c.  V.  Meetzes  4  Rich.  L.  50.  Tennes- 
see: Duke  v.  Harper,  6  Yerg.  230, 
27  Am.  Dec.  462;  Ladd  v.  Riggle,  6 
Heisk.  620.  Vermont:  Chamberlin 
V.  Donahue,  45  Vt.  50.  Virginia: 
Allen  v.  Paul,  24  Gratt.  332,  Wis- 
consin: Evans  v.  Enloe,  70  Wis. 
345,  34  N.  W.  918,  36  N.  W.  22. 
TTnited  States:  Willison  v.  Watkins, 
3  Pet.  43;  Peyton  v.  Stith,  5  Pet. 
485;  Walden  v.  Bodley,  14  Pet.  156; 
Zeller  v.  Eckert,  4  How.  289.  Eng- 
land: Hovenden  v.  Annesley,  2 
Sch.  &  L.  607;  Grubb  v.  Grubb,  10 
B.  &  C.  816;  Davies  v.  Evans,  9  M. 
&  W.  48;  Vivian  v.  Moat,  L.  R.  16 
Ch.  Div.  730. 

*  Bacon's  Abr.  tit.  Leases  and 
Terms  for  Years,  T.  2. 

*Farrant  v.  Thompson,  5  B.  & 
Aid.  826;  Agate  v.  Lowenbein,  57 
N.  Y.  604. 

« Willison  V.  Watkins,  3  Pet.  (U. 
S.)   43. 


i 


553  DISCLAIMER  BY   TENANT,  [§§'  475,  476 

must  be  open,  continued  and  notorious,  so  as  to  preclude  all  doubt  as 
to  the  character  of  the  holding  or  the  want  of  knowledge  on  the  part 
of  the  owner.''  To  allow  a  tenant  to  agree  and  profess  to  hold  posses- 
sion under  the  landlord,  and  at  the  same  time  hold  covertly  for  him- 
self, or  for  another's  advantage,  would  be  to  enforce  and  uphold  a 
gross  fraud,  which  the  law  will  never  do.^ 

§  475.  The  most  certain  general  test  of  the  sufficiency  of  a  dis- 
claimer to  create  a  forfeiture  is,  whether  the  tenants'  holding  is  thereby 
rendered  so  adverse  as  to  put  the  statute  of  limitations  in  operation  in 
his  favor,  whereby  his  adverse  possession  would  ripen  into  a  fee  by  the 
lapse  of  time.  The  stringent  rules  of  the  common  law  as  to  the  for- 
feiture of  his  term  by  a  tenant,  which  were  founded  on  the  system  of 
feudal  tenures,  are  inapplicable  in  this  country,  and  have  been  greatly 
modified  by  statutory  provisions.®  A  tenant,  when  served  with  notice 
to  quit  at  the  end  of  the  current  period,  said :  "It  does  not  make  any 
difference  to  me.  I  am  not  here  under  him.  I  am  here  under  another 
man."  This  was  held  to  be  a  repudiation  of  the  landlord's  title,  and 
an  action  of  ejectment  would  lie  against  the  tenant  without  waiting 
for  the  expiration  of  the  term,  because,  by  claiming  to  hold  under 
another,  the  occupant  lost  his  rights  as  a  tenant.^"  But  the  statement 
of  a  tenant  in  possession  under  an  agreement  to  purchase,  that  he  was 
not  holding  only  as  the  mere  tenant,  was  not  such  a  renunciation  of 
the  allegiance  of  an  unqualified  tenant  to  a  technical  landlord  as 
would  work  a  forfeiture  of  the  term." 

Where  the  tenancy  was  at  will,  the  acts  of  the  tenant  in  allowing 
an  extent  running  against  him  to  be  levied  on  the  land  were  held  so 
inconsistent  with  the  nature  of  the  holding  that  it  was  a  repudiation 
of  the  tenancy,  and  ended  the  will.^^  So,  a  tenant  at  will  forfeits  his 
estate  by  selling  his  interest.^^ 

§  476.  Generally,  attornment,  or  delivery  of  possession,  to  a 
stranger  or  adverse  claimant,  or  any  act  disavowing  the  title  of  the 
landlord,  and  claiming  a  superior  hostile  title  or  ownership,  amount- 

'Zeller  v.  Eckert,  4  How.  (U.  S.)  "Reeder   v.   Bell,    7   Bush    (Ky.) 

289.  255. 

*  Springs  v.   Schenck,   99   N.   Car.  "Campbell  v.  Procter,  6  Me.  12. 

551,  6  Am.  St.  552.  "Danes  Abr.,  Vol.  5,  p.  15;   Jack- 

"Dahm  v.  Barlow,  93  Ala.  120,  9  son   v.   Babcock,   4   Johns.    (N.   Y.) 

So.  598.  418. 

"Wlllard  V.  Earley  (Pa.),  14  Atl. 
426. 


§    477]  TERMIIs^ATIOX    OF    TENANCY.  554 

ing  to  a  repudiation  of  the  tenancy,  will  constitute  a  ground  for  for- 
feiture.^* Thus  giving  up  possession  to  an  adverse  claimant  forfeits 
the  tenant's  term.^^  Attornment  to  a  stranger  without  the  consent  or 
approval  of  the  landlord  has  the  same  effect.^^  The  moment  the  tenant 
sets  up  a  hostile  title  in  another,  the  lease  becomes  forfeited  and  the 
landlord's  right  of  entry  complete.  Where  a  tenant  disclaims  holding 
under  the  landlord  from  whom  he  received  the  possession,  and  attorns 
to  a  stranger,  the  attornment,  being  void  in  law,  does  not  operate  as  a 
disseisin  of  the  landlord.  He  may,  however,  elect  so  to  consider  it  and 
bring  his  action  for  a  disseisin.  ^^ 

There  can  be  no  adverse  possession  by  a  tenant  during  his  term  by 
his  mere  intention  so  to  hold,  and  without  doing  some  act  which  would 
amount  to  adverse  possession.  ^^  So,  the  lease  of  a  tenant  is  not  for- 
feited by  his  mere  claim  to  hold  adversely  to  the  landlord  under  whom 
he  entered.^^ 

§  477.  Conveyance  by  tenant. — By  the  old  common  law  rule  a 
tenant  might  forfeit  his  estate  by  act  in  pais,  as  where  he  aliens  the 
estate  in  fee.  Bacon  thus  states  the  matter :  "But  then  the  alienation 
must  be  by  such  mode  of  conveyance  as  displaces  or  divests  the  estate 
of  the  reversioner;  for  if  it  have  not  that  effect,  the  law  will  not 
adjudge  it  a  forfeiture.  It  must  be,  therefore,  by  feoffment  with 
livery;  for  this  only  operates  upon  the  possession,  and  effects  a  dis- 
seisin. It  cannot  be  by  a  grant,  or  any  conveyance  in  the  nature  of  a 
grant,  such  as  lease  and  release,  bargain  and  sale ;  conveyances  of  this 
kind  operating  only  on  the  grantor's  interest  and  passing  only  what 
he  may  lawfully  depart  with."-*'  This  is  now  changed  in  England  by 
a  statute  providing  that  a  feoffment  shall  not  have  any  tortious  effect.-^ 
But  this  only  serves  to  emphasize  the  fact  that  a  conveyance  under 
the  statute  of  uses  never  could  have  the  effect  of  a  forfeiture,  because 
it  passed  no  greater  interest  than  the  tenant  could  lawfully  convey, 

"Dahm  v.  Barlow,  93  Ala.  120,  9  L.  586;  Doe  v.  Flynn,  1  C.  M.  &  R. 
So.  598.  137. 


"  Doe  V.  Flynn,  1  C.  M.  &  R.  137 
Kyle  V.  Stocks,  31  U.  C.  Q.  B.  47. 
'"Fortier  v.  Ballance,  10   111.   41 


Woodward  v.  Brown,  13  Pet.  (U.  S.)     lard,  48  Cal.  614. 


1;  Blue  V.  Sayre,  2  Dana  (Ky.)  213 


"Blue   V,    Sayre,    2    Dana    (Ky.) 

213;  McCartney  v.  Auer,  50  Mo.  395. 

**  Abbey  Homestead  Asso.  v.  Wil- 


"  Montgomery   v.   Craig,   3    Dana 


Elms    V.    Randall,    4    Dana    (Ky.)  (Ky.)  101. 

519;  Steinhauser  v.  Kuhn,  50  Mich.  ""Bacon's    Abr.    tit.    Leases    and 

367,  15  N.  W.  513;  Lyon  v.  La  Mas-  Terms  for  Years,  T.  2;    McMichael 

ter,  103  Mo.  612,  15  S.  W.  767;   Doe  v.  Craig,  105  Ala.  382,  16  So.  883. 

V.  Pittman,  2  N.  &  M.  673,  28  E.  C.  "  8  and  9  Vict.,  ch.  106,  §  4. 


555  DISCLAIMER  BY   TENANT.  [§    478 

and  this  would  not  affect  the  rights  and  interests  of  the  landlord.^^ 
When  a  tenant  conveys  a  greater  interest  than  he  has  in  premises,  a- 
feoffment  with  livery  of  seisin  which  would  work  a  forfeiture  of  his 
estate  will  not  be  presumed ;  it  is  equally  probable  that  the  more  com- 
mon species  of  assurance  of  lease  and  release  or  bargain  and  sale  was 
adopted,  which,  though  in  terms  purporting  to  convey  a  fee,  in  reality 
transfers  no  more  or  greater  estate  than  the  grantor  had.^^ 

In  the  United  States,  as  well  as  in  England,  the  rule  as  to  forfeiture 
by  conveyance  has  been  modified  by  statute  in  some  jurisdictions. 
Such  acts  in  effect  provide  that  no  conveyance  shall  forfeit  the  ten- 
ant's rights.  Examples  of  this  kind  of  legislation  are  to  be  found  in 
Alabama^*  and  in  New  York.^^  The  supreme  court  of  the  former 
state  thus  declares  the  law :  "The  true  doctrine  is,  that  nothing  done 
or  suffered  by  a  tenant  for  life  can  operate  a  forfeiture  of  his  estate 
to  the  tenant  in  remainder,  but  that  his  estate  may  be  divested  and 
passed  as  any  other,  either  through  muniments  of  title  executed  by 
him  or  through  a  possession  adverse  to  him  for  the  statutory  period 
and  the  operation  of  law  thereon."^^ 

§  478.  By  matter  of  record. — A  lessee  may  incur  a  forfeiture  under 
the  ancient  common  law  "where  he  sues  out  a  writ  or  resorts  to  a 
remedy  which  claims  or  supposes  a  right  to  the  freehold;  or  where, 
in  an  action  by  his  lessor  grounded  on  the  lease,  he  resists  the  demand 
under  the  grant  of  a  higher  interest  in  the  land ;  or  where  he  acknowl- 
edges the  fee  to  be  in  a  stranger ;  for,  having  thus  solemnly  protested 
against  the  right  of  his  lessor,  he  is  estopped  by  the  record  from  claim- 
ing an  interest  under  him."^''  "If  he  (the  tenant)  affirms  the  rever- 
sion to  be  in  a  stranger  by  accepting  his  fine,  attorning  as  his  tenant, 
collusive  pleading,  and  the  like,  such  behavior  amounts  to  a  forfeiture 
of  his  particular  estate."-*  So,  where  a  tenant  at  will  accepted  a  deed 
in  fee  to  the  premises  from  a  third  person,  put  such  deed  on  record, 
claimed  by  his  plea  to  be  tenant  of  the  freehold,  and  offered  the  deed 

-  Emerick    v.    Tavener,    9    Gratt.  382,  388,  16  So.  883,  per  McClelland, 

(Va.)    220;    Jackson   v.   Mancius,   2  J.,    citing    Woodstock    Iron    Co.    v. 

Wend.  (N.  Y.)  357;  Grout  v.  Town-  Fullenwider,  87  Ala.  586,  6  So.  197, 

send,  2  Hill  (N.  Y.)  554.  and  Gindrat  v.  Western  &c.,  96  Ala. 

=' Jackson    v.    Mancius,    2    Wend.  162,  11  So.  372. 

(N.  Y.)  357.  "Bacon's    Abr.    tit.    Leases    and 

'*Civ.  Code  1896,  §  1038.  Terms  for  Years,  T.  2. 

^' Grout  v.  Townsend,  2  Hill    (N.  =^  Coke  Litt.  253,  quoted  in  Jack- 

Y.)   554,  citing  1  R.  S.  738,  §§  143,  son   v.   Vincent,    4    Wend.    (N.   Y.) 

145.  633. 

^'McMichael    v.    Craig,    105    Ala. 


I'   479]  TEEillXATIOX    OF    TEXAXCY.  556 

at  the  trial  as  evidence  of  title,  this  was  held  to  work  a  forfeiture  of 
the  estate  at  will.^^  In  one  case  it  was  claimed  that  a  life  estate  was 
forfeited  by  acceptance  of  a  deed  from  a  stranger,  under  the  common- 
law  rule  that  if  a  tenant  for  life  or  for  years  admitted  of  record  that 
the  fee  was  in  a  stranger,  he  forfeited  his  estate.  To  this  argument 
the  court  replied :  "True,  it  may  be  said  that  the  acceptance  of  a  deed 
and  putting  it  on  record,  under  our  law,  is  an  act  equally  conclusive 
as  an  admission  in  a  court  of  record.  But  as  the  reasons  of  the  law  do 
not  exist  here,  no  case  can  be  said  to  be  within  the  reason  of  it,  and  the 
only  question  must  be  whether  it  is  within  the  letter.  In  this  case  it 
was  not,  and  there  was  no  f  orf  eiture."^" 

In  the  entire  discussion  for  forfeiture  by  adverse  claim,  it  must  be 
remembered  that  the  forfeiture  only  takes  place  at  the  election  of  the 
landlord,  for  it  is  a  well-settled  principle  that  a  tenant  cannot  by 
buying  in  a  title  adverse  to  his  landlord's  relieve  himself  of  the  obli- 
gations of  his  tenancy  and  place  himself  in  all  respects  in  the  same 
condition  as  a  disseisor.  The  only  effect  is  that  if  he  does  so  and  re- 
pudiates the  tenancy,  the  landlord  has  his  election  to  treat  the  former 
tenant  as  a  trespasser  and  to  dispossess  him,^^ 

§  479.  By  deed  recorded. — It  has  been  held  that  a  deed  in  fee  by  a 
tenant  for  life  or  for  years,  executed  and  recorded,  is  a  repudiation  of 
the  tenancy  and  forfeits  the  term.  In  an  early  case  in  Massachusetts 
it  was  said :  "Our  deed  recorded  is  declared  by  statute  to  be  sufficient 
to  pass  the  land  and  estate,  without  any  other  act  or  ceremony  in  the 
law ;  this  must  mean  the  estate  expressed  in  the  deed  when  the  grantor 
has  the  capacity  to  convey,  that  is,  has  seisin;  and  the  common  law 
says  he  has  the  right  to  convey  when  he  is  actually  seized,  though  by 
right  or  by  wrong,  claiming  a  fee;  and  when  tenant  for  life  is  actu- 
ally seized  and  conveyed  in  fee,  it  must  be  sufficient  evidence  he 
claims  in  fee  so  that  he  can  thus  convey  a  larger  estate  than  he  has, 
and  so  divert  the  remainders  and  reversions  to  the  injury  of  their 
owners.  .  .  .  "^-  Such  is  the  law  of  South  Carolina^^  ^Iso.  A  court 
reaching  the  opposite  conclusion  supported  its  decision  by  pointing 
out  that  "even  under  the  ancient  faw  a  forfeiture  did  not  follow  a  con- 
veyance by  deed  or  by  any  other  mode  of  divestiture  except  a  technical 

=«  Bennock  v.  Whipple,  12  Me.  346.  ^  Trustees  v.  Jennings,  40  S.  Car. 

^oRosseel  v.  Jarvis,  15  Wis.  571.  168,  18   S.   E.   257,   891,   42  Am.    St. 

"Morse  v.  Byam,  55  Mich.  594,  22  854;  Trustees  &c.  v.  Meetze,  4  Rich. 

N.  W.  54.  L.    (S.  Car.)   50. 

^-  Commonwealth    v.    Welcome,    5 
Dane's  Abr.  13. 


557  DISCLAIMER    BY    TEXAXT.  [§    480 

feoffment."  The  court  went  on  to  say:  "Conveyance  by  feoffment  is 
unknown  to  our  laws,  and  this  doctrine  is  uj)on  general  principles 
opposed  to  that  public  policy  evidenced  by  all  our  statutes  obtaining 
in  the  premises  which  favors  the  transfer  of  all  estates  in  land  and 
denounces  entailments  and  forfeitures."^*  Another  argument  against 
the  South  Carolina  cases  is  that  they  hold  the  conveyance  causing  the 
forfeiture  starts  the  statute  of  limitations  to  running  against  the 
rights  of  the  landlord.  But  it  seems  well  settled  that,  even  if  the  ten- 
ant forfeits  his  estate,  he  does  so  only  at  the  option  of  the  landlord. 
If  the  landlord  desires,  he  may  overlook  the  tortious  act  of  his  tenant 
and  assert  his  rights  at  the  end  of  the  term  for  years  or  of  the  life 
interest.^°  It  is  well-settled  law  that  an  attornment  by  a  tenant  does 
not,  of  itself,  operate  to  destroy  the  possession  of  the  landlord.^^ 

§  480.  Payment  of  rent  as  an  act  of  disclaimer. — A  disclaimer,  as 
the  word  imports,  must  be  a  renunciation  by  the  party  of  his  character 
of  tenant,  either  by  setting  up  a  title  in  another,  or  by  claiming  title 
in  himself.  For  a  tenant  to  pay  rent  to  the  general  landlord  and  to 
refuse  to  pay  it  to  his  immediate  lessor  would  not  cause  a  forfeiture 
where  what  passed  between  the  parties  amounted  to  nothing  more  than 
a  mere  difference  of  opinion  with  reference  to  the  agreement.^^  The 
mere  payment  by  the  tenant  to  a  third  person  of  the  rent  reserved  by 
his  lease  does  not  amount  to  a  disclaimer  of  the  title  of  the  landlord, 
so  as  to  operate  as  a  forfeiture  of  the  lease.  If  the  tenant  pay  his  rent 
to  a  person  not  entitled  to  receive  it,  he  pays  it  in  his  own  wrong,  and 
may  afterwards  by  distress  or  action  be  compelled  to  pay  it  over  again 
to  his  landlord.^^  Thus  a  refusal  to  pay  rent  to  a  devisee  under  a 
contested  will,  accompanied  with  a  declaration  that  the  tenant  was 
ready  to  pay  the  rent  to  any  person  who  was  entitled  to  receive  it,  is 
not  a  disavowal  sufficient  to  dispense  with  the  necessity  of  a  regular 
notice  to  quit.^^ 

An  estate  for  a  fixed  number  of  years,  created  by  deed,  will  not  be 
forfeited  by  a  simple  refusal  to  pay  rent,  or  any  mere  words,  where 
there  is  no  unmistakable  hostilitv  to  the  landlord's  title  with  full 


I 


='*McMichael  v.  Craig,  105  Ala 
382,  16  So.  883. 

*=  Moore  v.  Luce,  29  Pa.  St.  260 
Jackson  v.  Mancius,  2  Wend.  (N 
Y.)   357. 

^Doe  v.  Reynolds,  27  Ala.  364 
Porter  v.  Hammond,  3  Me.  188;  Wil 


Jackson  v.  Harsen,  7  Cow.  (N.  Y.) 
323;  Jackson  v.  Harper,  5  Wend. 
(N.  Y.)  246.' 

^'  Doe  V.  Cooper,  1  M.  &  G.  135,  39 
E.  C.  L.  683. 

^^Doe  V.  Parker,  Gow.  180. 

'"  Doe    V.    Pasquali,    Peake    N.    P. 


lison  V.  Watkins,  3  Pet.  (U.  S.)  43;      (3d  ed.)   259. 


§   481]  TERMINATION    OF    TENANCY.  558 

notice  from  the  tenant  of  his  adverse  claim,  when  no  condition  or 
covenant  of  forfeiture  is  contained  in  the  deed  of  lease.*"  However, 
an  absolute  denial  by  a  tenant  of  his  liability  for  rent  is  evidence  of  a 
disavowal  of  his  landlord's  title.  Such  evidence  may  be  submitted  to 
the  jury,  and  the  jury  may  find  there  was  such  a  disclaimer  as  would 
work  a  forfeiture  of  the  tenant's  term.*^  After  forfeiting  a  term  by 
denying  his  liability  for  rent,  a  tenant  cannot  revive  the  tenancy  by 
offering  to  pay  the  rent  and  to  acknowledge  the  tenancy.*^ 

§  481.  Mere  words  can  never  work  a  forfeiture  of  an  estate  for 
life  or  for  years.  This  precise  question  was  decided  by  the  court  of 
Queen's  Bench  in  England.*^  The  defendant  was  in  possession  under 
an  unexpired  term  for  ninety-nine  years  at  an  annual  rent  and  deter- 
minable on  lives.  On  an  application  for  rent  by  the  agent  of  the 
plaintiff,  who  was  entitled  to  the  reversion,  the  defendant  refused  to 
pay  it,  and  asserted  that  the  fee  was  in  himself.  The  judge  at  the 
assizes  directed  the  jury  to  find  for  the  plaintiff  if  they  were  of 
opinion  that  the  words  used  by  the  defendant  were  a  serious  claim  of 
the  fee.  Verdict  for  the  plaintiff.  The  case  was  very  learnedly  argued, 
and  by  the  unanimous  opinion  of  the  court  it  was  held  that  the  plain- 
tiff was  not  entitled  to  recover.  Lord  Denman  said  he  felt  the  danger 
of  allowing  an  interest  in  land  to  be  put  an  end  to  by  mere  words. 
Patterson,  J.,  said  no  case  had  been  cited  where  a  lease  for  a  definite 
term  had  been  forfeited  by  mere  words.  They  distinguished  the  case 
from  tenancies  at  will  and  from  year  to  year,  in  which,  they  said,  a 
denial  of  tenancy  was  not  a  forfeiture,  but  rather  a  waiver  of  notice  to 
quit.  The  doctrine  of  this  case  has  received  judicial  approval  in  courts 
of  the  United  States.**  To  commence  an  adverse  holding,  the  tenant 
must  do  something  equivalent  to  a  surrender  of  possession  to  the  land- 
lord and  bring  home  to  him  knowledge  of  the  adverse  claim.*^ 

II.    Forfeiture  for  BreacJi  of  Condition. 

§  482.  Forfeitures  are  also  incurred  by  the  breach  of  express  or 
conventional  conditions;  for  the  lessor  having  the  jus  disponendi  may 

^'Gale  v.   Oil  Run  &c.   Co.,  6   W.  "  De  Lancey  v.  Ganong,  9  N.  Y.  9; 

Va.  200.  Gale  v.  Oil  Run  &c.  Co.,  6  W.  Va. 

"Doe  v.  Cooper,  1  M.  &  G.  135,  39  200;     Jackson    v.     Kisselbrack,     10 

E.  C.  L.  683.  Johns.   (N.  Y.)   336. 

*^  Conner  v.  Jones,  28  Cal.  59.  "Whiting  v.  Edmunds,  94  N.  Y. 

«Doe  v.  Wells,  10  A.  &  E.  427,  37  309. 
E.   C.   L.   237.     To   same   effect  see 
Whiting  V.  Edmunds,  94  N.  Y.  309. 


II 


559  rOKFEITUKE  FOR  BREACH  OF  CONDITIONS.       [§'  482 

annex  whatever  conditions  he  pleases  to  his  grant,  provided  they  be 
not  illegal,  nor  repugnant  to  the  grant  itself,  and  upon  the  breach  of 
those  conditions  may  avoid  the  lease.  Conditions  of  this  sort  are  gen- 
erally inserted  with  a  view  to  secure  the  payment  of  the  rent,  to  pre- 
vent the  commission  of  waste,  or  to  restrain  the  alienation  of  the 
estate  without  license  from  the  lessor.*®  If  a  lease  explicitly  pro- 
vides that  the  landlord  my  treat  it  as  void  upon  breach  of  condition 
by  the  tenant,  his  election  to  enforce  the  condition  dissolves  the  rela-" 
tion  of  landlord  and  tenant  between  the  parties  and  determines  the 
tenancy.*''  After  the  owner,  by  reason  of  the  lessee's  default,  and  in 
the  assertion  of  his  rights  as  landlord,  has  secured  an  actual  and 
peaceable  repossession  of  the  premises,  the  lease  becomes  absolutely 
forfeited,  and  a  mortgage  of  the  leasehold  estate,  executed  by  the 
lessee,  falls  with  it.*® 

A  condition  has  been  defined  generally  as  "a  qualification  or  re- 
striction annexed  to  a  conveyance  of  lands  whereby  it  is  provided  that, 
in  case  a  particular  event  does  or  does  not  happen,  or  in  case  the 
grantor  or  grantee  does  or  omits  to  do  a  particular  act,  an  estate  shall 
commence,  be  enlarged,  or  be  defeated."*^  The  distinguishing  feature 
of  a  condition,  as  compared  to  a  conditional  limitation,  is  that  a  breach 
of  a  condition  can  only  be  taken  advantage  of  by  entry.  A  breach  in 
the  condition  of  a  deed,  which  is  not  a  limitation,  but  gives  a  mere 
right  of  reentry,  does  not  avoid  the  estate.  The  estate  is  terminated 
solely  by  the  reentry  of  the  lessor.^"  A  provision  in  a  lease  that  the 
lessor  may  terminate  the  lease  at  the  end  of  any  year  by  giving  sixty 
days'  previous  notice  "in  case  he  sho-uld  sell  or  desire  to  rebuild,"  is 
not  a  condition,  but  a  limitation,  and  the  term  expires  by  force  of  a 
sale  and  notice,  without  any  further  act  on  the  part  of  the  lessor,  such 
as  entry. ^^  So,  where  a  lease  contained  not  only  the  usual  covenant  of 
reentry  for  non-payment  of  rent,  but  also  an  express  covenant  that  in 
case  the  rent  reserved  should  be  in  arrear  and  unpaid  for  the  space  of 
six  months,  the  lease  should  be  void,  it  was  held  that  the  legal  effect 
of  this  covenant  was  to  divest  the  title  of  the  lessee  upon  the  happen- 
ing of  the  contingency  named. ^- 

"  Bacon's    Abr.    tit.    Leases    and  ''"Co.    Litt.    214b;    Comyn's    Land 

Terms  for  Years,  T.  2.  &  Ten.  104;  Spear  v.  Fuller,  8  N.  H. 

"Miller  v.  Havens,  51  Mich.  482,  174;    Johnson    v.    Gurley,    52    Tex. 

16  N.  W.  865;  De  Lancey  V.  Ganong,  222;    Robey   v.   Prout,   7   I).   C.   81; 

9  N.  Y.  9.  Den  v.  McKnight,  11  N.  J.  L.  38B. 

*« Abrahams  v.  Tappe,  60  Md.  317.  "Miller  v,  Levi,  44  N.  Y.  489. 

*'  Greenl.  Cruise,  Dig.  tit.  13,  ch.  "  Cooke-  v.  Brice>  20  Md,  397. 
1,    §  1,    quoted    in    Bouvier's    Law 
Diet.,  Rawle's  Rev. 


§    483]  TERMINATION   OF   TENANCY.  560 

The  right  to  forfeit  vested  estates  cannot,  however,  arise  by  reason 
of  the  existence  or  non-existence  of  a  state  of  facts  not  clearly  defined. 
A  condition  "to  use  all  economy  in  an  enterprise"  is  too  uncertain  to 
be  recognized  as  a  ground  on  which  a  forfeiture  might  rest.^' 

§  483.  Necessity  for  re-entry. — In  a  case  arising  on  the  construc- 
tion of  a  gas  lease  there  was  a  covenant  to  commence  operations  within 
nine  months  or  to  pay  a  fixed  sum  per  month  till  work  was  com- 
menced. A  failure  to  comply  with  either  one  or  the  other  of  these 
conditions  was  to  work  an  absolute  forfeiture  of  the  lease.  There  was 
no  covenant  for  reentry.  Upon  failure  to  commence  operations  and 
to  pay  the  money  in  lieu  thereof  the  lessor  leased  to«  another  person. 
It  was  held  that  the  first  lease  was  thus  avoided  and  the  second  lease 
was  good  against  it.  The  execution  af  the  second  lease  was  a  sufficient 
declaration  of  forfeiture  without  demand  and  reentry.  The  question 
involved  was  whether  the  common-law  method  of  enforcing  a  for- 
feiture by  demand  and  reentry  was  applicable  to  a  lease  which  sim- 
ply provided  for  forfeiture  for  breach  of  its  covenants,  but  contained 
no  clause  of  reentry.^*  After  stating  the  old  law  to  be  that  a  breach 
of  condition  terminated  a  lease  without  reentry,  the  court  continues: 
"Under  the  law  as  it  had  stood,  so  dead  was  the  lease  upon  the  breach 
of  the  condition  that  the  landlord  could  not  recognize  it  as  existing 
or  revive  it  but  by  a  new  lease,  but  it  was  dead  as  to  both  him  and 
his  tenant;  but  under  the  modification  of  the  rule  wrought  by  the 
later  decision  the  lease  continued  good  until  the  landlord  avoided  it, 
but  so  far  as  the  tenant's  rights  were  concerned  it  was  void,  and  he 
could  not  set  it  up  against  the  landlord.     .     .     .     Thus  no  reentry 

"Benavides  v.  Hunt,  79  Tex.  383,  necessary  to  avoid  it;   but  by  anal- 

15  S.  W.  396.  ogy     .     .     .     the      grantor      should 

"Guffy  v.  Hukill,  34  W.  Va.  49,  have  given  notice  of  his  intention 
11  S.  E.  754;  Alleghany  Oil  Co.  v.  to  terminate  it."  In  the  same  case 
Bradford  Oil  Co.,  21  Hun  (N.  Y.)  Park,  J.,  adds:  "It  is  not  necessary 
26,  affirmed  in  86  N.  Y.  638.  In  Rob-  to  decide  whether  the  word  void 
arts  v.  Davey,  4  B.  &  Ad.  664,  670,  means  voidable  by  entry  or  voida- 
Littledale,  J.,  says:  "If  it  had  been  ble  by  any  other  act  showing  the 
a  freehold  lease  of  land  subject  to  election  of  the  grantor. 
a  condition  that  it  should  be  void  Re-entry  by  lessor  is  not  neces- 
on  non-performance  of  covenants,  it  sary  when  he  is  already  in  posses- 
would  have  been  necessary  for  the  sion.  Island  Coal  Co.  v.  Combs,  152 
lessor  to  avoid  it  by  entry;  or  if  Ind.  379,  53  N.  B.  452;  Maxwell  v. 
that  were  impossible,  by  claim.  Todd,  112  N.  Car.  677,  16  S.  E.  926. 
This  instrument  is  a  mere  license  "  2  Minor,  Inst.  229,  citing  2  Bl. 
to  dig,  and  did  not  pass  the  land.  Comm.  155;  2  Thorn.  Co.  Litt.  3,  4, 
An  actual  entry  therefore  was  un-  87,  88,  95-97. 


d 


561  POEFEITUEE  FOR  BREACH  OF  CONDITIONS.       [g  484 

is  necessary  in  case  of  a  lease  for  years  which  contains  a  clause  for 
forfeiture  for  breach  of  covenant  but  no  clause  of  reentry."^''  Another 
ground  upon  which  the  decision  could  be  rested  was  that  reentry 
was  impossible  because  the  lessor  was  already  in  possession.^^ 

However,  if  a  condition,  and  not  a  limitation  is  created,  the  ordi- 
nary reentry  clause  raises  a  necessity  for  some  positive  act  of  the 
landlord  to  determine  the  tenant's  estate.^^  An  entry  by  a  lessor  for 
lessee's  breach  of  covenants  pursuant  to  a  clause  for  reentry  in  the 
lease  is  not  wrongful,  and  if  the  lessee  is  guilty  of  the  breaches  al- 
leged as  the  basis  for  the  lessor's  action,  he  cannot  claim  damages  for 
the  entry.^^  The  entry  of  a  landlord  in  order  to  revest  possession  must 
not  be  merely  casual,  but  should  be  for  the  purpose  of  taking  posses- 
sion, and  the  nature  of  the  entry  is  to  be  shown  by  the  acts  and  dec- 
larations of  the  parties,*'*'  A  waiver  of  any  requirement  for  reentry 
to  forfeit  a  lease  may  be  confined  to  the  landlord's  right  to  bring  a 
statutory  process  to  recover  possession.  Even  then  the  lessor  to  be  en- 
titled to  such  process  must  do  some  unequivocal  act  that  would  signify 
to  the  lessee  his  election  to  terminate  the  lease.*'^  Where  none  of 
the  usual  steps  to  declare  a  forfeiture  have  been  taken,  the  lease  will 
not  be  forfeited  merely  because  grounds  for  forfeiture  existed  and 
also  an  intention  to  declare  a  forfeiture.  The  law  does  not  favor 
forfeiture  and  will  not  imply  them  from  slight  circumstances,  but 
they  must  be  formally  and  clearly  declared.®^ 

§  484.  How  affected  by  statutes. — By  an  early  English  statute,®^ 
which  was  reenacted  in  New  York,"*  it  was  provided  that  when  a 
right  of  reentry  by  the  landlord  exists,  the  service  of  a  declaration  in 
ejectment  stands  in  the  place  and  stead  of  a  demand  and  reentry.  To 
authorize  the  action  evidence  was  required  that  no  sufficient  distress 
could  be  found  upon  the  premises.  Subsequently  distress  for  rent 
was  abolished  in  New  York,  and  it  was  provided  that  if,  after  a  no- 
tice of  fifteen  days,  the  tenant  did  not  pay  the  rent,  the  landlord  might 
reenter.   And  it  was  held  that  this  notice  of  fifteen  days  stood  in  the 

'"Guffy  V.  Hukill,   34  W.  Va.   49,  ^"Wright  v.  Everett,  87  Iowa  697, 

11  S.  E.  754,  per  Brannon,  J.  55  N.  W.  4. 

"Co.  Litt.  316b,  218b;   Sheaffer  v.  «•  Holly  v.  Brown,  14  Conn.  255. 

Sheaffer,  37  Pa.  St.  525;   Alleghany  "^  Read  v.  Tuttle,  35  Conn.  25. 

Oil  Co.  V.  Bradford  Oil  Co.,  21  Hun  "Cheney  v.  Bonnell,  58  111.   268. 

(N.  Y)  26,  affirmed  in  86  N.  Y.  638.  «' 4  Geo.  II,  ch.  2  to  4,  enacted  A. 

■''Bowman  v.  Foot,  29  Conn.  331.  D.  1731. 

«*  Samson  v.  Rose,  65  N.  Y.  411. 

Jones  L.  &  T.— 36 


§■  485]  TERMIXATIOX    OF   TEXAXCT.  563 

place  of  the  evidence  of  want  of  goods  to  distrain  upon.  The  English 
statute  has  also  been  reenacted  in  Maryland/^  and  so  in  that  State  the 
service  of  the  declaration  in  an  ejectment  suit  is  a  substitute  for  a  de- 
mand for  rent  in  every  case.  The  length  of  the  term  cannot  affect  the 
operation  of  the  statute.  A  perpetual  lease  creates  the  relation  of  les- 
sor and  lessee  or  landlord  and  tenant,  and  the  statute  in  terms  applies 
to  every  such  case.  It  dispenses  with  a  previous  demand  of  rent  and 
reentry  and  substitutes  therefor  service  of  a  copy  of  the  declaration 
in  ejectment  in  all  cases  where  the  landlord  or  lessor  has  right  by  law 
to  reenter.^^  Express  stipulations  in  a  lease  regarding  demand  have 
been  held  not  to  make  a  demand  necessary.  In  a  case  arising  in  Eng- 
land/^ a  lease  provided  for  reentry  in  case  of  the  rent  being  in  arrear 
for  a  certain  time  and  'Toeing  lawfully  demanded/'  and  the  court, 
contrary  to  the  opinion  of  Lord  Ellenborough,  held  that  the  insertion 
of  these  words  in  the  lease  did  not  affect  the  operation  of  the  statute 
and.  that  a  demand  was  unnecessary.  That  case  settled  the  law  in  Eng- 
land, and  there  is  no  substantial  difference  between  the  words  "being 
lawfully  demanded"  and  "being  first  lawfully  demanded.''  In  the 
construction  of  such  an  instrument  the  latter  are  included  in  the  legal 
force  and  operation  of  the  former.*'®  Moreover,  in  England  the  statute 
did  not  extend  to  cases  where  there  was  a  sufficient  distress  upon 
the  premises,  and  consequently  in  such  cases  the  lessor  must  proceed 
at  common  law  to  make  an  entry .^^  It  has  been  expressly  ruled  that 
under  the  statute  of  4  Geo.  2,  there  must  be  proof  that  on  some  day 
or  period  between  the  time  at  which  the  rent  fell  due  and  the  day  of 
the  demise  there  was  not  a  sufficient  distress  upon  the  premises. '''* 
This  same  construction  has  been  applied  to  the  statute  as  reenacted  in 
Maryland."^ 

§  485.    An  option  to  claim  an  estate  for  breach  of  condition  is 
sufficiently  expressed  by  entry  or  acts  equivalent  thereto.     If  the 

lease  does  not  require  notice,  the  act  of  taking  possession  is  an  ex- 
ercise of  the  option  and  is  all  the  notice  required.  It  would  be  un- 
reasonable to  say  a  written  notice  was  required  when  it  was  not  called 
for  by  the  instrument  itself.^^   As  has  already  appeared,  a  title  does 

«'Md.    Acts    1872,    ch.    346,    §  2;  =°  Doe  v.  Lewis,  1  Burr.  614,  620; 

Gen.  Pub.  Laws  1888,  Art.  75,  §  70,  p.  Doe   v.   Wandlass,   7   Term   R.   113, 

1129.  117. 

°*  Campbell  v.  Shipley,  41  Md.  81,  '°  Doe  v.  Fuchau,  15  East  286. 

94.  "Connor  v.  Bradley,  1  How.    (U. 

"Doe  v.  Alexander,  2  M.  &  S.  525.  S.)   211. 

** Campbell  v.  Shipley,  41  Md.  81,  '-^Metropolitan   Land   Co.  v.  Man- 

94.  ning,  98  Mo.  App.  248,  71  S.  W.  696;i 


563  rOEFEITUEE  FOR  BREACH  OF  COXDITIOXS.       [§  486 

not  revest  immediatel}^  upon  a  breach  of  condition,  for  the  lessor  may 
waive  the  forfeiture,  in  which  case  the  estate  continues.  So  the 
landlord  cannot  recover  possession  of  the  premises  until  he  has  mani- 
fested his  determination  to  enforce  the  forfeiture  by  entering  or 
making  a  claim  for  condition  broken."  And  in  Xebraska  it  has  been 
held  that  the  lessee  must  be  notified  of  the  lessor's  intention  to  declare 
a  forfeiture.  It  was  there  ruled  that  in  order  to  avail  himself  of  the 
option  of  declaring  a  forfeiture  it  was  the  duty  of  the  lessor  to  give 
the  lessee  reasonable  notice  that  he  would  terminate  the  lease  unless 
the  rent  was  paid  or  other  conditions  complied  with.  If  the  lessor  re- 
took possession  without  notice  and  without  the  lessee's  knowledge, 
he  would  be  liable  for  such  damages  as  might  be  sustained  by  the  lessee 
by  reason  of  his  wrongful  act.''* 

§  486.  That  a  condition  in  a  lease  calling  for  a  forfeiture  is  to  be 
strictly  construed  against  the  lessor  is  a  universal  rule  recognized  by  all 
the  authorities.  It  has  been  declared  that  a  provision  for  the  forfeiture 
of  a  lease  will  always  be  construed  so  as  to  prevent,  rather  than  aid, 
the  forfeiture.''^  Forfeiture  is  a  harsh  remedy,  not  favored  by  the 
law,  even  though  the  only  loss  upon  the  tenant  is  being  deprived  of  the 
balance  of  the  term.'**  Where  the  subject  of  the  forfeiture  is  valuable 
improvements  owned  by  the  tenant,  forfeiture  should  be  even  less 
favored,  and  unless  compelled  by  an  unbending  rule  of  law,  a  court 
of  equity  would  not  enforce  the  forfeiture  of  property  of  considerable 
value  belonging  to  the  tenant.''^  So  in  a  case  where  a  lease  of  a  farm 
on  the  shares  provided  that  if  it  was  not  worked  in  a  proper  manner 
the  lessor  might  enter  and  take  charge  of  the  premises  and  property 
thereby  rented,  it  was  held  that  this  allowed  the  lessor  on  breach  to 

Clarke   v.    Brookfield,   81   Mo.    503;  '=  Knight  v.  Orchard,  92  Mo.  App. 

Messersmith  v.  Messersmith,  22  Mo.  466;   Sauer  v.  Meyer,  87  Cal.  34,  25 

369.  Pac.    153;     Hough    v.    Brown,    104 

''Sperry  v.  Sperry,  8  N.  H.  477;  Mich.   109,  62  N.  W.  143;    North  & 

Gray  v.  Blanchard,  8  Pick.   (Mass.)  South  &c.  Co.  v.  O'Hara,  73  111.  App. 

284,    289;     Chalker    v.    Chalker,    1  691;    Estabrook   v.   Hughes,   8   Neb. 

Conn.    79;     Co.    Litt.    218a;     Shep.  496,  1  N.  W.  132;   Miller  v.  Havens, 

Touch.  150.  51    Mich.    482,    16    N.    W.    865;    De- 

'*  Cannon  v.  Wilbur,  30  Neb.  777,  Lancey  v.  Ganong,  9  N.  Y.  9;   Pres- 

47  N.  W.  85.  byterian  Church  v.  Pickett,  Wright 

"Sauer  v.  Meyer,   87   Cal.   34,  25  (Ohio)     57;    Kentucky    &c.    Co.    v. 

Pac.  153;    Camp  v.  Scott,  47  Conn.  Commonwealth,  13  Bush  (Ky.)  435. 

366,  375;    Tate  v.  Crowson,  6   Ired.  ''Estabrook    v.    Hughes,    8    Neb. 

L.  (N.  Car.)  65;   Parks  v.  Hays,  92  496,  1  N.  W.  132. 
Tenn.  161,  22  S.  W.  3. 


TEEMINATION  OF  TENAXCY.  564 

Session  of  the  stock  but  not  of  the  growing  crops  planted  by 
tenant.'''^  A  landlord  who  allows  his  tenant  to  expend  large  sums 
of  money  in  valuable  and  lasting  improvements,  without  objection 
or  inquiry  as  to  the  intent  in  regard  to  violation  of  covenants,  is 
estopped  to  assert  a  forfeiture  of  the  lease  because  of  such  improve- 
ments where  no  substantial  damage  results  from  the  alteration.  A 
covenant  in  the  nature  of  a  restriction  or  limitation  upon  the  use  of 
property  leased  will  not  be  enlarged  by  construction,  and  any  doubts 
as  to  its  meaning  will  be  resolved  in  favor  of  the  lessee.'^^  But  in  the 
face  of  this  general  doctrine,  a  condition  that  a  tenant  will  forfeit  his 
lease  by  ceasing  to  use  the  demised  house  as  a  dwelling  has  been  con- 
strued to  require  his  continued  residence  there.*"  In  view  of  the 
familiar  attitude  of  courts  toward  forfeitures,  this  should  be  in- 
terpreted to  mean  merely  that  the  house  should  not  be  used  as  a  store 
or  as  a  shop.  It  has  for  a  very  long  time  been  the  policy  of  the 
law,  and  courts  have  felt  it  their  duty  in  administering  the  law,  as  far 
as  possible,  to  limit  the  effect  of  a  clause  or  provision  in  a  lease  or  stat- 
ute by  which  a  forfeiture  is  created.®^  Yet  when,  by  a  reasonable  con- 
struction, it  appears  that  the  contracting  parties  agreed  that  a  for- 
feiture should  take  place  upon  the  failure  of  one  of  the  parties  to  com- 
ply with  a  material  part  thereof,  courts  will  decree  a  forfeiture*^  in 
case  the  default  or  failure  is  satisfactorily  established.*^  When,  how- 
ever, a  forfeiture  is  an  end  in  itself,  not  a  means  of  enforcing  some- 
thing else,  it  cannot  be  relieved  against,  and  is  not  to  be  regarded  with 
hostility.  If  a  landlord  bargains  for  a  right  to  end  the  lease  in  case 
of  fire  the  stipulation  is  to  be  approached  no  more  adversely  than  if  he 
had  reserved  a  right  to  end  it  by  sale,  or  by  the  payment  of  a  certain 
sum  of  money.** 

§  487.  The  mere  breach  of  a  covenant  by  the  tenant  can  give  the 
landlord  no  right  of  re-entry  unless  there  be  a  stipulation  in  the  lease 
that  such  breach  of  covenant  shall  work  a  forfeiture  or  determination 
of  the  tenant's  interest.   Xo  ejectment  can  be  maintained  by  the  land- 

"Koeleg  V.  Phelps,  80  Mich.  466,  Mich.  482,  16  N.  W.  865;   DeLancey 

45  N.  W.  350.  V.  Ganong,  9  N.  Y.  9. 

"  Hawes  v.  Favor,  161  111.  440,  43  "=  Faylor  v.  Brice,  7  Ind.  App.  551, 

N.  E.  1076.  34  N.  E.  833. 

«"  Marsh  v.  Bristol,  65  Mich.  378,  "' Wilmington  &c.  Co.  v.  Allen,  95 

384,  32  N.  W.  645.  III.    288;    Consolidated    Coal    Co.   v. 

«^Doe  V.  Stevens,  3  B.  &  Ad.  299;  Schaefer,  31  111.  App.  364. 

Doe  V.  Hogg,  4  D.  &  R.  226;  Doe  v.  '*  Hunnewell  v.  Bangs,  161   Mass. 

Godwin,  4  M.  &  S.  265;  Doe  v.  Bond,  132,  36  N.  E.  751. 
5  B.  &  C.  855;  Miller  v.  Havens,  51 


I 


565  FORFEITURE  FOR  BREACH  OF  COXDITIOXS,       [§  487 

lord  for  mere  breach  of  covenant  not  coupled  with  a  proviso  that  the 
term  shall  end.  His  only  remedy  would  be  an  action  for  breach  of 
covenant.  ^^  Where  there  is  no  right  of  reentry  reserved  in  a  lease,  and 
no  agreement  that  failure  to  perform  covenants  shall  operate  as  a 
forfeiture,  mere  breach  of  covenants,  express  or  implied,  does  not 
terminate  the  relation  of  landlord  and  tenant.®®  And  if  there  be  doubt 
as  to  the  true  construction  of  a  clause  in  a  lease,  it  should  be  held  to 
be  a  covenant  and  not  a  condition.^^  Where  there  was  a  stipulation  in 
a  lease  forbidding  assignment  without  written  consent  on  the  part  of 
the  lessor,  but  no  express  provision  for  forfeiture  in  case  of  breach 
followed,  it  was  held  that  the  express  terms  of  the  lease  would  not  be 
extended  by  implication  and  an  assignment  would  not  forfeit  the 
lease.  In  other  parts  of  the  lease  there  were  covenants  for  breach  of 
which  there  was  an  express  provision  for  forfeiture.^®  But  a  provision 
that  for  breach  of  any  of  the  covenants  or  agreements  in  a  lease,  the 
lessor  might  declare  the  term  ended  and  reenter,  gives  a  mere  covenant 
the  force  of  a  condition.  Of  such  a  stipulation  it  was  said :  "This  is 
not  a  mere  covenant  not  to  assign,  but  it  is  a  power  of  reentry  for  a 
breach  of  covenant,  and  this  .  .  .  has  the  force  of  a  condition. 
It  may  be  true  that  in  the  construction  of  deeds  courts  will  incline  to 
interpret  the  language  as  a  covenant  rather  than  as  a  condition.  But 
the  intention  of  the  parties  to  the  instrument,  when  clearly  ascer- 
tained, must  control."®^  In  the  case  of  a  condition  broken  the  right  of 
reentry  by  the  landlord,  if  the  condition  is  of  such  a  nature,  would 
ensue;  but  for  a  breach  of  covenant,  where  no  right  of  reentry  is  re- 
served for  such  breach,  only  an  action  for  damages  would  follow.®'^  A 
printed  clause  providing  that  the  lease  would  be  forfeited  for  breach 
of  any  of  the  covenants  would  be  a  suificient  basis  for  forfeiture  be- 
cause of  non-payment  of  taxes,  as  provided  for  by  another  covenant 
in  the  lease.  It  does  not  alter  the  result  that  there  is  a  written  pro- 
vision for  forfeiture  which  would  not  include  the  covenant  in  regard 
to  taxes.^^  Where  the  proviso  in  regard  to  reentry  in  case  of  breach  of 

*° Bauer  v,  Knoble,  51  Minn.  358,  (    "Johnson  v.  Gurley,  52  Tex.  222. 

53  N.  W.  805;  Vanatta  V.  Brewer,  32  ;    ^  Burnes    v.    McCubbin,    3    Kan. 

N.  J.  Eq.  268;    Hubner  v.  Feige,  90  221;    Den  v.  Post,  25  N.  J.  L.  285; 

111.  208;  Johnson  v.  Gurley,  52  Tex.  Spear  v.  Fuller,  8  N.  H.  174. 

222;  Ocean  Grove  &c.  Ass'n  v.  San-  ^'Kew  v.  Trainor,  150  111.  150,  37 

ders,  68  N.  J.  L.  631,  54  Atl.  448;  N.  E.  223,  per  Craig.  J. 

Den  v.  Post,  25  N.  J.  L.  285.  "''  People   v.   Gilbert,   64    111.   App. 

''Norris   v.   Harris,   15    Cal.   226;  203;   Philips  v.  Doe,  3  Ind.  132. 

Pickard  v.  Kleis,  56  Mich.  604,  609,  "  Heiple    v.    Reinhart,    100    Iowa 

23  N.  W.  329;   Presbyterian  Church  525,  68  N.  W.  871. 
v.  Pickett,  Wright  (Ohio)  59. 


§    488]  TERMINATION    OF    TENANCY.  566 

covenant  in  the  lease  had  been  erased  from  a  lease,  it  was  held  that 
what  would  have  been  conditions  were  left  mere  covenants,  relieved 
of  any  conditions  whatever.  Any  other  construction  would  do  violence 
to  the  expressed  intention  of  the  parties.^^ 

§  488.  A  breach  of  an  implied  covenant  in  a  lease  such  as  by  the 
commission  of  waste  does  not  in  the  absence  of  an  express  provision 
to  that  effect  give  the  landlord  a  right  to  terminate  the  lease.^^  More- 
over, where  express  and  implied  covenants  exist  side  by  side  in  a  lease, 
a  clause  giving  the  lessor  a  right  to  enter  and  terminate  the  lease  for. 
a  breach  of  the  express  covenants  has  been  held  not  to  confer  a  similar 
right  for  breach  of  an  implied  covenant.  The  implied  agreement  must 
be  regarded  as  a  naked  covenant,  and  the  right  of  reentry  in  case  of 
default  must  be  held  to  apply  only  to  breaches  of  the  express 
promises.^*  In  the  absence  of  express  covenants  as  to  husbandry  in  a 
farming  lease,  the  clause  providing  for  reentry  was  held  not  to  apply 
to  the  implied  covenants  of  the  lease.^^ 

But  the  case  seems  to  be  different,  if  the  tenancy  is  at  will,  for  it 
has  been  declared  to  be  a  well-settled  rule  that  if  a  tenant  at  will  com- 
mits waste,  it  is  a  determination  of  the  will  and  an  act  of  trespass, 
and  that  trespass  quare  clausum  fregit  will  lie  by  the  reversioner.*^" 
An  estate  at  will  existing  by  the  statutes  of  the  State  of  Maine  gives 
to  a  tenant  at  will  rights  for  a  period,  after  a  written  notice  to  quit, 
of  equal  validity  with  those  acquired  under  a  written  lease  for  a  like 
period.  Such  rights,  it  has  been  held,  would  not  be  destroyed  by  the 
commission  of  waste  by  the  tenant,  and  the  landlord  would  be  left 
for  redress  to  his  action  on  the  case  in  the  nature  of  waste. ^' 

In  leases  of  mineral  lands,  where  the  lessee  agrees  to  pay  to  the 
lessor  a  royalty  or  rent,  which  depends  on  the  amount  of  coal  or  other 
product  mined,  the  lessee  thereby,  in  the  absence  of  any  provision  to 
the  contrary,  impliedly  obligates  himself  to  begin  the  development 
of  the  coal  and  the  mining  thereof  within  a  reasonable  time  after  the 
execution  of  the  lease.  A  failure  upon  the  part  of  the  lessee  will  be 
held  to  operate  as  a  forfeiture  of  his  rights.^^ 

"^'Hanaw  v.  Bailey,   83   Mich.   24,  "=  Daniels     v.      Pond,      21      Pick. 

46  N.  W.  1039;  Langley,  v.  Ross,  55  (Mass.)    367;    Phillips   v.   Covert,  7 

Mich.  163,  20  N.  W.  886.  Johns.   (N.  Y.)   1;   Suffern  v.  Town- 

«' Bauer  v.  Knoble,  51  Minn.  358,  send,  9  Johns.  (N.  Y.)  35. 

53  N.  W.  805.  "  Young  v.  Young,  36  Me.  133. 

**  Hough  V.  Brown,  104  Mich.  109,  ''  Island    Coal   Co.    v.    COmbs,   152 

62  N.  W.  143.  Ind.   379,  53   N.   E.  452;    Conrad   v. 

^''Somers  v.  Loose,  127  Mich.  77,  Morehead.   89  N.  Car.  31;    Maxwell 

86  N.  W.  386.  V.  Todd,  112  N.  Car.  677,  16  S.  E. 


567  FORFEITUEE  FOR  BKEACH  OF  CONDITIONS.       [§  489 

§  489.  Acts  of  sub-tenant.— A  breach  by  a  sub-tenant  of  the  con- 
ditions or  covenants  of  the  original  lease  will  forfeit  such  lease.^* 
Furthermore  a  severance  of  the  occupation  of  demised  premises,  the 
rent  being  paid  to  the  original  lessor  by  the  respective  sub-tenants,  is 
not  a  severance  of  the  conditions  of  the  lease,  and  a  breach  of  the  con- 
ditions of  the  lease  by  one  of  the  occupants  works  a  forfeiture  of  the 
whole  lease.^°°  But  a  notice  by  the  lessor  to  one  occupying  under  the 
lessee,  that  the  lessor  will  look  to  him  for  rent,  made  when  no  rent  is 
due  and  not  upon  the  demised  premises,  does  not  terminate  the  lease 
on  the  ground  of  non-payment  of  rent."^ 

A  statute  imposing  a  forfeiture  for  illegal  use  by  a  tenant  was 
held  not  to  make  a  lessee  liable  for  the  act  of  his  sub-tenant.  The 
illegal  use  only  made  void  the  lease  under  which  the  occupant  held. 
It  was  not  intended  to  vacate  the  title  of  the  owner  or  lessor  by  reason 
of  the  acts  of  the  sub-tenant.  Such  a  construction  would  operate 
harshly.  The  effect  of  it  would  be  to  destroy  the  title  of  a  lessor,  how- 
ever valuable  the  term,  by  the  acts  of  his  undertenant,  of  which  his 
lessor  had  no  notice  and  over  which  for  the  time  he  had  no  control.^"^ 

The  tenant  is  liable  to  suffer  a  forfeiture,  however,  if  he  sub-lets 
with  knowledge  that  the  undertenant  intends  to  put  the  premises  to 
an  illegal  use.^°^  In  the  same  jurisdiction  where  the  preceding  doc- 
trine was  adopted  it  was  subsequently  said  that  the  claim  that  a  for- 
feiture must  always  be  to  the  immediate  landlord  of  him  who  used 
the  premises  for  his  unlawful  trade  was  a  construction  which  was  not 
warranted  by  the  language  of  the  statute.  If  adopted  it  would  enable 
the  lessee,  by  underletting,  to  deprive  the  landlord  of  the  benefit  of  the 
provisions  of  the  statute.^^*  A  lessee  could  not  avoid  the  effect  of  the 
illegal  user  of  his  sub-tenant  by  ousting  the  tenant  and  thus  putting 
a  stop  to  the  illegal  use.^''^  Nor  would  the  original  landlord  lose  his 
right  to  insist  upon  a  forfeiture  by  seeking  to  recover  the  penalty  of 
double  rent  allowed  by  the  statute.^"® 

926;    Shenandoah   Land   &c.    Co.   v.  (Mass.)   312;   O'Connell  v.  M'Grath, 

Hise,  92  Va.  238,  23  S.  E.  303;  Blue  14  Allen    (Mass.)    289. 

Stone  Coal   Co.  v.   Bell,  38  W.  Va.  ^"^  Shaw  v.  McCarty,  59  How.  Pr. 

297,  18  S.  E.  493.  (N.  Y.)   487;   People  v.  McCarty,  62 

"'Wheeler     v.     Earle,     5     Cush.  How.  Pr.  (N.  Y.)  152. 

(Mass.)  31,  51  Am.  Dec.  41.  '"'People  v.  Bennett,  14  Hun   (N. 

""Clarke   v.    Cummlngs,    5    Barb.  Y.)   63. 

(N.  Y.)  339.  "sgtiaw  v.  McCarty,  59  How.  Pr. 

'"'Gage  V.  Smith,  14  Me.  466.  (N.  Y.)  487. 

"='Healy     v.      Trant,      15      Gray  '"^People  v.  Bennett,  14  Hun   (N. 

Y.)  58. 


§§    490,   491]  TEEMINATIOX    OF    TEXAXCY.  568 

§  490.  The  general  doctrine  that  equity  will  never  lend  its  aid  in 
exacting  a  penalty  applies  generally  to  cases  of  forfeiture  for  breach 
of  condition,  because  a  forfeiture  is  in  the  nature  of  a  penalty.  So  the 
rule  has  been  declared  to  be  that  a  court  of  equity  will  not  enforce 
a  forfeiture,  but  will  leave  the  party  claiming  it  to  his  legal  remedies, 
such  as  an  action  at  law  to  recover  possession.^"''  On  the  other  hand, 
chancellors  have  no  compunctions  in  interfering  to  prevent  a  for- 
feiture, and  a  court  of  equity  has  extended  its  protection  to  a  default- 
ing party  to  prevent  a  forfeiture  after  a  right  to  forfeit  for  breach  of 
condition  has  been  waived.^**®  A  bill  filed  to  remove  a  cloud  on  a  title 
caused  by  the  claims  of  a  lessee  under  a  lease  alleged  to  have  been  for- 
feited, and  asking  that  the  court  ascertain  if  such  forfeiture  is  com- 
plete, and,  if  so,  remove  the  cloud,  is  not  open  to  the  objection  that 
equity  will  never  enforce  a  penalty  or  forfeiture.  The  bill  treated  the 
lease  as  a  void  incumbrance,  under  which  the  lessee,  by  his  claims, 
clouded  the  lessor's  title.  The  court  was  not  asked  to  declare  a  for- 
feiture, but  to  ascertain  whether  or  not  a  completed  forfeiture  existed, 
and  if  so  to  remove  the  cloud.  The  bill  did  not  ask  the  court  to  do  the 
thing,  but  to  ascertain  if  it  had  been  done,  and  if  so,  to  declare  its 
effects  upon  the  title  of  the  lessor's  property. ^"^  Neither  does  this 
doctrine  apply  where  a  landlord  has  already  entered  and  declared  a 
forfeiture  and  is  seeking  by  injunction  to  prevent  a  trespass  upon  his 
possession.  The  landlord  is  not  seeking  to  have  a  court  of  equity  de- 
clare or  enforce  a  forfeiture.  That  had  already  been  done  by  making 
entry  and  taking  possession.  He  is  only  seeking  now  to  prevent  a  re- 
currence of  trespasses  made  upon  the  possession  he  secured  after  for- 
feiture, and  he  is  entitled  to  an  injunction  on  the  ground  that  though 
a  trespasser  is  solvent,  yet  when  his  trespasses  are  harrassing  and  con- 
tinuous, damages  recovered  in  an  action  at  law  are  not  an  adequate 
remedy  for  them.^^"  Equity  will  not  relieve  against  a  forfeiture 
which  is  perfect  in  every  respect  at  law  to  enjoin  an  action  at  law  to 
recover  possession  of  the  premises.^^^ 

§  491.  Under  certain  circumstances  a  court  of  equity  may,  with- 
out violating  any  settled  rules,  relieve  against  a  forfeiture.^^-     For- 

"^  Livingston     v.      Tompkins,      4  "'  Pendill  v.  Union  Mining  Co.,  64 
John.   Ch.    (N.  Y.)    415;    Linden   v.  Mich.  172,  31  N.  W.  100. 
Hepburn,    3    Sandf.     (N.    Y.)     668;  ""Metropolitan  Land  Co.  v.  Man- 
Little  Rock  &c.  Co.  V.  Shall,  59  Ark.  ning,  98  Mo.  App.  248,  71  S.  W.  696. 
405,  27  S.  W.  562;   Justice  v.  Lowe,  "^  Palmer  v.  Ford,  70  111.  369. 
26  Ohio  St.  372.  "=Lundin  v.   Schoeffel,   167  Mass, 

^°«  Little  Rock  &c.  Co.  v.  Shall,  59  465,   45   N.   E.   933;    Mactier  v.   Os- 

Ark.  405,  27  S.  W.  562.  born,  146  Mass.  399,  15  N.  E.  641; 


569  FORFEITURE  FOR  BREACH  OF  CONDITIONS.       [§'  491 

feitures  which  are  incurred  through  inadvertance  or  mistake,  without 
any  bad  faith  on  the  part  of  the  lessee,  will  be  relieved  against  on  a 
showing  that  no  actual  damage  has  been  sustained  by  the  lessor.^ ^^ 
The  result  of  the  authorities,  supported  by  sound  principles,  is  that 
"where  there  has  been  a  breach  of  a  covenant  to  pay  rent,  equity  will 
relieve  against  a  forfeiture,  although  the  breach  is  wilful  on  the  part 
of  the  lessee ;  and  where  there  has  been  a  breach  of  a  covenant  to  per- 
form some  collateral  duty  such  as  to  repair  or  insure,  which  has  been 
caused  by  accident  or  mistake,  equity  will  relieve  if  the  lessor  can, 
by  compensation  or  otherwise,  be  placed  in  the  same  condition  as  if 
the  breach  had  not  occurred."^^*  In  all  cases  where  a  penalty  or  for- 
feiture is  designed  to  secure  the  payment  of  a  certain  sum  of  money, 
a  court  of  equity  will  grant  relief  upon  payment  of  the  money  se- 
cured, with  interest,  as  in  the  case  of  forfeitures  for  the  non-payment 
of  rent.^^^  The  clause  of  reentry  as  applicable  to  the  covenants  for 
the  payments  of  rent  or  taxes,  or  any  other  sum  certain,  is  in  equity 
treated  as  a  security  for  the  payment  of  money,  and  precise  compen- 
sation can  be  made  for  the  breach  of  it  and  in  such  case  the  court  will, 
in  the  exercise  of  its  equitable  powers,  relieve  from  a  forfeiture  on 
such  terms  as  may  be  just.^^*'  If  non-payment  of  taxes  was  a  mere 
omission  and  not  an  act  of  wilful  bad  faith,  the  lessee  could  obtain  re- 
lease from  the  forfeiture  by  an  action  in  equity  setting  up  the  omis- 
sion to  pay  and  that  all  payments  had  been  subsequently  made.^^''' 
But  relief  was  refused  where  the  failure  to  pay  the  taxes  was  inten- 
tional and  in  bad  faith.^^®    Equity  aids  the  vigilant  and  not  such  as 

Sanborn     v.     Woodman,     5     Cush.  v.  Tupper,  29  Vt.  358;    Sanders  v. 

(Mass.)    36;   Atkins  v.  Chilson,  11  Pope,  12  Ves.  282  and  note. 

Mete.    (Mass.)    112,    117;    Giles    v.  "^Atkins    v.     Chilson,     11     Mete. 

Austin,  62  N.  Y.  486;   Noyes  v.  An-  (Mass.)  112;  Johnston  v.  Hargrove, 

derson,  124  N.  Y.  175,  26  N.  E.  316;  81  Va.  118;    Little  Rock  &c.  Co.  v. 

Justice  v.   Lowe,   26   Ohio   St.   372;  Shall,  59  Ark.  405;   Baxter  v.  Lan- 

Hagar  v.  Buck,  44  Vt.  285;   Henry  sing,  7  Paige  (N.  Y.)  350. 

V.  Tupper,  29  Vt.  358;  Sunday  Lake  "« Garner  v.  Hannah,  6  Duer   (N. 

Min.  Co.  V.  Wakefield,  72  Wis.  204,  Y.)    262;   Baldwin  v.  Van  Vorst,  10 

39   N.  W.  136;    Hill   v.   Barclay,   18  N.  J.  Eq.  577,  585;  Wadman  v.  Cal- 

Ves.  56,  58;  Story  Eq.  Jur.,  §§  1314-  craft,  10  Ves.  67;   Sanders  v.  Pope, 

1323.  12  Ves.  282. 

"^Lundin  v.  Schoeffel,  167  Mass.  "^  Giles  v.  Austin,  62  N.  Y.  486; 

465,  45  N.  E.  933.  Noyes  v.  Anderson,   124  N.  Y.  175, 

'"Mactier    v.    Osborn,    146    Mass.  26  N.  E.  316;   Messersmith  v.  Mes- 

399,  15  N.  E.  641,  quoted  in  Lundin  sersmith,  22  Mo.  369. 

V.  Schoeffel,  167  Mass.  465,  45  N.  E.  "*  Metropolitan  Land  Co.  v.  Man- 

933;  Livingston  v.  Tompkins,  4  ning,  98  Mo.  App.  248,  71  S.  W.  696. 
Johns.  Ch.  (N.  Y.)  415,  431;  Henry 


§   492]  TEKMIXATIOX   OF   TENANCY.  570 

sleep  upon  their  rights  and  requires  that  he  who  seeks  equity,  must 
do  equity;  so  it  follows  that  a  chancery  court  will  not  interfere  when 
the  breach  of  condition  has  been  culpable,  long  persisted  in  and  detri- 
mental. ^^^  Where  other  covenants  have  been  broken  besides  the  one 
for  rent  for  which  a  right  of  entry  is  reserved  and  no  relief  can  be 
given  by  equity  for  a  breach  of  the  others,  a  forfeiture  for  breach  of 
the  condition  concerning  rent  will  not  be  relieved  against  as  such  re- 
lief would  be  of  no  effect.  ^^^ 

§  492.  Only  in  exceptional  cases  will  equity  relieve  against  a  for- 
feiture caused  by  a  failure  to  repair  or  insure.  But  a  default  on  the 
part  of  a  lessee  to  proceed  promptly  with  the  work  of  making  im- 
provements was  a  failure  to  pay  out  money  for  this  purpose  and  was 
unlike  a  failure  to  repair.  The  lessee's  failure  was  merely  an  omission 
to  do  promptly  something  which  was  only  useful  to  the  lessors  by  way 
of  security  for  the  future  payment  of  rent.  It  was  not  like  a  case 
where  the  omission  caused  a  present  injury  or  increase  of  risk  to  the 
lessors,  as  in  the  case  of  waste,  non-repair,  or  non-insurance.  It  was 
merely  a  failure  to  pay  out  money  and  was  much  like  an  omission  to 
pay  taxes.  In  such  a  case  a  court  of  equity  is  not  required  to  refuse 
relief  against  a  forfeiture,  but  may  look  into  the  circumstances,  and 
determine  whether  on  the  whole  it  is  just  and  right  that  such  relief 
should  be  granted.^^^  In  a  case  of  forfeiture  for  failure  to  insure,  the 
lessee  in  good  faith  intended  to  have  the  policies  renewed  in  the  same 
amounts  and  form.  By  accident  or  by  mistake  of  the  insurance . 
brokers,  they  were  renewed  in  a  form  which  did  not  fairly  meet  the 
requirements  of  the  covenant.  This  was  not  wilful  or  voluntary  on 
the  lessee's  part.  It  was  not  an  accidental  forgetfulness  to  renew  the 
policies.  The  property  had  been  fully  insured  all  the  time.  It  was 
an  occurrence  not  anticipated  by  the  lessee,  and  not  known  to  him 
until  after  the  lessor  entered  to  enforce  the  forfeiture.  No  miscon- 
duct or  culpable  fault  can  be  attributed  to  the  lessee.  The  lessors  had 
not  in  fact  been  injured  by  the  accident  and  could  have  been  put  w 
statu  quo.  So  it  was  declared  to  be  against  equity  and  good  conscience 
that  the  demandant  should  insist  upon  a  forfeiture  of  a  valuable  lease- 
hold estate.^^^     The  nature  of  the  relief  which  equity  will  grant  is 

"» Bacon  v.  Park,  19  Utah  246,  57  ^  Lundin  v.  Schoeffel,  167   Mass. 

Pac.  28.  465,  45  N.  E.  933. 

^  Sunday    Lake    Mining    Co.    v.  ^  Mactier    v.    Osborn,    146    Mass. 

Wakefield,    72    Wis.    204,    39    N.    W.  399,  15  N.  E.  641. 
136;   Nokes  v.  Gibbon,  3  Drew.  681, 
693;   Bowser  v.  Colby,  1  Hare  109. 


571  FOEFEITUKE  FOR  BREACH  OF  COXDITIOXS.       [§  493 

limited  to  a  relief  against  the  forfeiture.  Thus  a  lease  contained  a 
stipulation  that  the  lessee  might  remove  improvements  provided  he 
paid  rent  and  kept  his  agreements,  but  he  failed  to  do  so  and  the  lessor 
took  possession  of  the  improvements.  It  was  held  that  while  equity 
might  interfere  for  the  purpose  of  preventing  a  forfeiture,  it  would 
not  do  so  for  the  purpose  of  allowing  the  lessee  to  sue  for  damages 
for  the  acts  of  the  lessor  in  regard  to  the  improvements.^^^ 

However  the  general  rule  is  that  equity  will  not  relieve  against  for- 
feiture from  the  breach  of  covenants  where  compensation  cannot  be 
made.^^*  Hence,  equity  will  not  in  general,  and  in  the  absence  of 
special  circumstances  calling  for  interference,  give  relief  in  cases  of 
forfeiture  growing  out  of  breach  of  covenants  for  repairing,  insuring 
or  doing  an}^  specific  act,  because  in  such  cases  it  is  not  known  what 
the  measure  of  damages  would  be.^-^ 

§  493.  Emblements. — An  entry  for  condition  broken  entitles  the 
landlord  to  crops  growing  at  the  time  the  entry  is  made.  The  lessees 
would  have  no  equitable  claims  to  emblements,  as  the  termination  of 
the  estate  resulted  from  their  own  act  in  making  default.  The  whole 
law  of  emblements  is  derived  from  a  rule  of  public  policy.^^*'  But 
when  there  has  been  no  cause  for  forfeiture,  mere  abandonment  of  the 
premises  does  not  prevent  the  tenant  from  passing  a  good  title  by  a 
sale  of  growing  crops.^-'  Wliere  by  statute  the  institution  of  an  action 
of  ejectment  was  substituted  for  damand  for  rent  and  entry  by  the 
landlord,  judgment  in  the  action  would  relate  back  and  the  landlord 
would  be  entitled  to  crops  growing  at  the  time  the  ejectment  suit  was 
commenced.^ -^ 

Where  an  assignment  of  a  lease  and  the  sale  of  a  growing  crop  to  a 
prohibited  person  caused  a  breach  of  condition  which  forfeited  the 
lease,  it  was  held  that  title  to  the  growing  crop  passed  to  the  vendor 
in  spite  of  a  forfeiture  and  the  assignee  was  entitled  to  recover  from 
the  lessor  who  had  resumed  possession,  the  net  value  of  the  wheat 
after  it  was  threshed.  ^-^ 

^Stamps    V.    Cooley,    91    N.    Car.         ^'Samson  v.  Rosa,  65  N.  Y.  411; 

316.  Dayton    v.    Van    Doozer,    39    Mich. 

^'*  Gregory  v.  Wilson,  9  Hare  683,  749;  Woodcock  v.  Carlson,  41  Minn. 

689.  542,  43  N.  W.  479. 

"=  Hukill  v.  Guffey,  37  W.  Va.  425,         ""  Dayton  v.  Van  Doozer,  39  Mich. 

464,  15  S.  E.  544;   Wafer  v.  Mocato,  749. 

9   Mod.    112;    Reynolds   v.    Pitt,    19         ^"^  Samson  v.  Rose,  65  N.  Y.  411. 
Ves.  134,  141;  2  Story  Eq.  Jur.  (13th         "'Collier  v.   Cunningham,   2   Ind. 

ed.)    1319-1324.  App.  254,  28  N.  E.  341, 


§•  494]  TEEMINATION"    OF    TEXAXCY.  573 

§  494.  A  possibility,  right  of  entry,  thing  in  action,  cause  of  suit 
or  title  for  condition  broken  could  not  be  granted  or  assigned  over  at 
common  law.^^''  While  this  ancient  doctrine  has  been  greatly  relaxed 
in  modern  times,  the  rule  that  a  mere  right  of  entry  for  forfeiture 
cannot  be  assigned  has  never  been  ehanged.^^^  There  were  two  prin- 
cipal reasons  why  the  assignment  of  things  in  action  were  held  in- 
valid at  common  law.  One  was  to  avoid  maintenance.  In  early 
times  maintenance  was  regarded  as  an  evil  principally  because  it 
would  enable  the  rich  and  powerful  to  oppress  the  poor.  This  reason 
has  in  modem  times  lost  much  but  not  the  whole  of  its  force.  The 
other  reason  is,  a  principle  of  law  applicable  to  all  assignments,  that 
they  are  void,  unless  the  assignor  has  either  actually  or  potentially 
the  thing  which  he  attempts  to  assign. ^^-  The  right  of  reentry  is 
not  an  estate  or  interest  in  land,  nor  does  it  imply  a  reservation  of  a 
reversion.  It  is  a  mere  chose  in  action.  Wlien  enforced  the  grantor 
is  in  through  the  breach  of  condition  and  not  by  the  reverter.^^^  When 
a  lessee  assigns  the  whole  term,  the  right  of  reentry  for  a  breach  of  a 
condition  subsequent  is  not  reserved  or  retained.  The  right  of  re- 
entry can  only  exist  as  an  incident  to  a  reversion.^^*  But  an  assign- 
ment of  rents  does  not  carry  with  it  a  right  to  reenter  for  breach  of 
condition.  At  common  law  the  landlord  is  the  party  to  enforce  a 
forfeiture  for  non-payment  of  rent  even  though  he  has  assigned  over 
the  rents  to  accrue  during  the  term.^^^  Thus  in  a  case  where  the 
lessee  forfeited  his  lease  under  a  statute  by  an  illegal  use  of  the  prem- 
ises and  the  lease  reversion  was  subsequently  assigned,  it  was  held  that 
the  right  to  enforce  the  forfeiture  did  not  pass  to  the  assignee.  The 
forfeiture  could  only  be  enforced  by  the  one  holding  the  reversion  at 
the  time  the  act  affording  a  ground  for  forfeiture  was  committed."® 
By  statute  in  Illinois  the  common-law  rule  is  changed  and  the  same 
right  of  entry,  by  action  or  otherwise,  passes  to  the  grantee  of  the 

""Bac.  Abr.  Assignment,  A;  Com.  N.    W.    221;    Wright   v.    Hardy,   76 

Dig.   Assignment,   A;    Shep.   Touch-  Miss.  524,  24  So.  697. 

stone   240;    Rice   v.    Stone,   1   Allen  "*  Ohio  Iron  Co.  v.  Auburn   Iron 

(Mass.)    566.  Co.,  64  Minn.  404,  67  N.  W.  221. 

^^^  Trask     v.     Wheeler,     7     Allen  "=  Chamberlin  v.  Brown,  2  Dougl. 

(Mass.)  109.  (Mich.)    120;   Belinski  v.  Brand,  76 

"=Rice  V.  Stone,  1  Allen   (Mass.)  111.   App.    404;    Small   v.    Clark,   97 

566;   Jones  v.  Richardson,  10  Mete.  Me.  304,  54  Atl.  758;  Fenn  v.  Smart, 

(Mass.)  481.  12  East  444;   Bennett  v.  Herring,  3 

^^  Craig    V.    Summers,    47    Minn.  C.  B.  (N.  S.)  370,  91  E.  C.  L.  370. 

189,  49  N.  W.  742;   Ohio  Iron  Co.  v.  ^'^  Small  v.  Clark,  97  Me.  304,  54 

Auburn   Iron  Co.,  64  Minn.  404,  67  Atl.  758. 


573  FORFEITURE  FOR  BREACH  OF  CONDITION'S.       [§  495 

lessor  as  the  lessor  himself  had.^^^  An  earlier  case  distinguishing  be- 
tween the  right  of  reentry,  transferred  to  the  grantee  by  force  of  the 
statute  and  a  reversionary  interest,  does  not  hold  that  such  right  of 
reentry  is  not  transferred  by  operation  of  the  statute.^ ^^  By  a  similar 
statute  in  New  Jersey  a  grantee  of  a  reversion  may  take  advantage  of 
a  right  of  reentry  in  the  same  manner  as  the  original  lessor  could  have 
done.^^^  While  in  Kansas  it  has  been  held  that  where  a  right  to  enter 
upon  land  to  sow  grain  has  been  reserved  by  a  lessor,  such  right  is 
assignable  unless  there  is  an  express  provision  forbidding  assign- 
ment.^^" 

§  495.  A  landlord  is  not  bound  to  declare  a  forfeiture  for  breach 
of  a  condition/"  as  he  may  insist  on  the  tenant's  fulfilling  his  obli- 
gations under  the  lease.  A  condition  for  forfeiiure  is  for  the  benefit  of 
the  lessor,  not  of  the  lessee.  The  lessor  has  the  right  to  elect  whether 
or  not  he  will  enforce  the  forfeiture  and  if  he  waives  it,  the  lease 
still  remains  in  force.  ^■*-  "Void,"  when  used  in  this  connection,  means 
voidable  at  the  lessor's  election.  "Expire  and  terminate''  is  also  an 
elliptical  phrase,  meaning  "expire  and  terminate  at  the  lessor's  op- 
tion.""^ The  estate  is  not  wholly  void  by  reason  of  a  breach.  Its 
avoidance  is  contingent  upon  the  acts  of  the  reversioner."^  "The 
tenant  cannot  insist  that  his  own  act  amounted  to  a  forfeiture;  if  he 

"^Thomasson   v.   Wilson,   146    111.  343;    Planters'   Ins.  Co.  v.  Diggs,  8 

384,  34  N.  E.  432;  Belinski  V.  Brand,  Baxt.    (Tenn.)    563;    Levett  v.  Bick- 

76  111.  App.  404;  Rev.  Stat.,  chap.  80,  ford,   8   Humph.    (Tenn.)    614,   618; 

§  14.  Trask  v.  Wheeler,  7  Allen    (Mass.) 

''"  Sexton  V.  Chicago  Storage  Co.,  109;  Rice  v.  Stone,  1  Allen  (Mass.) 

129  III.  318,  21  N.  E.  920.  566;  Walker  v.  Engler,  30  Mo.  130; 

""Robinson  v.  Boys,  61  N.  J.  L.  Johnson    v.    Gurley,    52    Tex.    222; 

179,  38  Atl.  813.  Stuyvesant   v.    Davis,    9   Paige    (N. 

""Brewster    v.    Gracey,    65    Kan.  Y.)    427;    Clark  v.   Jones,   1   Denio 

137,  69  Pac.  199.  (N.  Y.)  516,  43  Am.  Dec.  706;  Coch- 

"^  Springer  v.  Chicago  &c.  Co.,  102  ran  v.  Pew,  159  Pa.  St.  184,  28  Atl. 

111.  App.  294.  219;    Conger  v.  Transportation  Co., 

"=Todd  V.  Hall,  10  Conn.  544,  560;  165  Pa.  St.  561,  30  Atl.  1038;  Rob- 
Brown  V.  Cavins,  63  Kan.  584,  66  erts  v.  Bettman,  45  W.  Va.  143,  30 
Pac.  639;  Edmonds  v.  Mounsey,  15  S.  E.  95;  Doe  v.  Bancks,  4  B.  &  Aid. 
Ind.  App.  399,  44  N.  E.  196;  Alex-  401;  Roberts  v.  Davey,  4  B.  &  Ad. 
ander  v.  Touhy,  13  Kan.  64;  Proc-  664;  Doe  v.  Birch,  1  M.  &  W.'402. 
tor  V.  Keith,  12  B.  Mon.  (Ky.)  252;  '"Jones  v.  Carter,  15  M.  &  W. 
Creveling  v.  West  End  Iron  Co.,  51  718;  Bowman  v.  Foot,  29  Conn.  331. 
N.  J.  L.  34,  16  Atl.  184;  Smith  v.  '"  Bowman  v.  Foot,  29  Conn.  331; 
Miller,  49  N.  J.  L.  521,  13  Atl.  39;  Shep.  Touch.,  p.  139,  184. 
Western  Bank  v.  Kyle,  6  Gill  (Md.) 


§    495]  TEEMIXATIOX    OF    TEXA]S'CY.  574 

could  ,  .  .  the  landlord  would  be  defeated  by  a  tenant  showing 
his  own  default."  "In  order  to  derive  any  benefit  from  the  lease  of 
a  mine  it  was  the  object  of  the  landlord  by  introducing  the  forfeiture 
clause,  to  compel  his  tenant  to  work  it.  That,  therefore,  being  the  ob- 
ject of  the  parties  in  introducing  the  clause  I  think  it  will  be  fully 
answered,  by  holding  the  lease  to  be  void  at  the  option  of  the  land- 
lord."^^^  A  default  alone  does  not  create  a  forfeiture  but  only  gives 
lessor  the  right  to  reenter  and  demand  one.^*®  The  rule  that  con- 
ditions for  forfeiture  are  for  the  benefit  of  the  lessor  alone  holds  good 
even  though  language  conveying  a  contrary  impression  is  used  in  the 
lease.  Thus  under  a  lease  providing  that  breach  of  covenants  by  the 
lessee  "shall  work  an  absolute  forfeiture  of  this  grant  and  lease,  and 
the  privileges  or  easements  hereby  given  shall  absolutely  cease,  de- 
termine, and  become  null  and  void,"  it  was  held  that  the  lessee  could 
not  terminate  the  lease  by  breach  of  covenant. ^*^  A  similar  result 
was  reached,  although  the  lease  declared  that  the  breach  of  certain 
covenants  on  the  part  of  the  lessee  should  render  it  void,  and  "not  to 
be  revived  without  the  consent  of  both  parties."^*^  Thus  a  condition 
that  if  rent  is  not  paid,  the  lease  is  to  terminate  and  the  lessee  is  to 
vacate  the  premises  is  for  the  benefit  of  the  landlord  and  does  not 
enable  the  lessee  to  terminate  the  lease.^***  An  assignment  without 
written  consent  of  the  lessor  may  be  a  breach  both  of  a  covenant  and 
a  condition  not  to  assign.  After  such  a  breach,  the  lessor  has  only 
the  option  of  forfeiting  the  lease  for  breach  of  condition  and  he  has 
not  the  option  of  declaring  the  assignment  void.  An  assignment  in 
violation  of  the  covenant  is  not  void  and  does  not  avoid  the  lease  but 
passes  the  term  and  the  only  remedy  is  an  action  for  breach  of  cove- 
nant.^^*'  The  fact  that  under  the  conditions  of  a  lease  the  execution 
by  the  lessee  of  a  certain  agreement  is  a  ground  for  forfeiture  does  not 
render  the  agreement  void  as  between  the  immediate  parties  to  it,  but 
voidable  only  at  the  option  of  the  lessor.^ ^^ 

Moreover  a  landlord  cannot  enforce  a  forfeiture  against  such  por- 
tion of  the  demised  premises  as  he  desires  to  retake  into  his  posses- 
sion and  waive  it  as  to  the  rest  of  the  premises.^^- 

"5  Doe  V.  Bancks,  4  B.  &  Aid.  401,  ""  Morris  v.  De  Wolf,  11  Tex.  Civ. 

per  Hoboyd  and  Best.  App.  701,  33  S.  W.  556. 

"« Alexander    v.    Touhy,    13    Kan.  ^^  Randol  v.   Tatum,   98   Cal.   390, 

64.  33  Pac.  433. 

"'Wills  V.  Manufacturers'  &c.  Co.,  ^^' Willoughby    v.    Lawrence,    116 

130  Pa.  St.  222,  18  Atl.  721.  111.  11,  4  N.  E.  356. 

"'Phillips  V.  Vandergrift,  146  Pt.  ^^=  Ocean  Grove  &c.  Assn.   v.  Ber- 

St.  357,  23  Atl.  347.  thall,  62  N.  J.  L.  88,  40  Atl.  779. 


575  FORFEITURE    FOR    BREACH    OF    COXDITIOXS.  [§■   496 

§  496.  Waiver  of  ground  for  forfeiture.— Any  act  done  by  a  land- 
lord knowing  of  a  cause  of  forfeiture  by  his  tenant,  affirming  the  ex- 
istence of  the  lease  and  recognizing  the  lessee  as  his  tenant,  is  a 
waiver  of  such  forfeiture.^^^  ''Slight  acts  are  deemed  sufficient  for 
this  purpose  and  any  recognition  of  a  tenancy  subsisting  after  the 
right  of  entry  has  accrued  and  the  lessor  has  notice  of  the  forfeiture, 
will  have  the  effect  of  a  waiver.''^^*  Yet  it  is  also  true  that  the  mere 
indulgence  or  silent  acquiescence  upon  the  part  of  the  lessor  is  not  to 
be  construed  as  a  waiver  of  a  breach  of  the  condition  of  forfeiture.^^^ 
The  conducting  of  negotiations  for  the  adjustment  of  past  difficulties 
would  amount  to  a  waiver  of  a  notice  of  forfeiture  previously  given 
by  the  landlord  and  he  would  be  obliged  to  give  another  notice.^^^ 

It  is  well  settled  that  where  the  breach  of  a  condition  consists  of  a 
single  act,  the  forfeiture  may  be  waived  by  any  act  which  may  ba 
construed  as  an  affirmance  of  the  contract. ^^^  The  waiver'  need  not 
be  by  affirmative  acts,  any  seeming  acquiescence,  laches  or  estoppel 
will  accomplish  the  same  end.^^^  The  courts  have  gone  even  further 
and  held  that  a  covenantee  may  be  estopped  from  claiming  a  forfeiture 
for  subsequent  breach  of  condition.  This  doctrine  has  been  applied 
whenever  the  general  course  of  dealing  has  led  the  party  to  believe 
that  strictness  in  compliance  with  the  terms  of  the  condition  would 
not  be  required. ^^'^  Yet  even  after  an  estoppel,  if  the  covenantee  give 
notice  that  he  intends  henceforth  to  stand  upon  his  legal  right,  it  has 
been  held  that  he  may  enforce  the  terms  of  the  contract  strictly  from 
that  time  on.^^°  On  the  other  hand  it  has  been  declared  that,  if  one 
party  to  a  contract  intentionally  by  language  or  conduct  leads  the 

i'*^  Williams  v.  Vanderbilt,  145  111.  Cone,  52  Md.  698;  Estel  v.  St.  Louis 

238,  34  N.  E.  476;  Planters'  Ins.  Co.  &c.  R.   Co.,  56   Mo.   282;    Ireland  v. 

V.     Diggs,     8     Baxt.     (Tenn.)     563;  Nichols,    46    N.    Y.    413;    Collins   v. 

Levett     V.     Bickford,     8      Humph.  Hasbrouck,   56   N.   Y.   157;    Murray 

(Tenn.)  614,  618,  §  473.  v.  Harway,  56  N.  Y.  337;   Becker  v. 

'"Garnhart  v.  Finney,  40  Mo.  449;  Werner,  98  Pa.  St.  555. 
Nagel  v., League,  70  Mo.  App.  487.  ^^  Barrie.  v.  Smith,   47  Mich.  130, 

'"Island   Coal  Co.  v.  Combs,  152  10  N.  W.  168;  Vicksburg  &c.  R.  Co. 

Ind.  379,  53   N.  E.  452;    Lindsey  v.  v.  Ragsdale,  54  Miss.  200;   Allen  v. 

Lindsey,  45  Ind.  552,  567;   Jackson  Dent,  4  Lea   (Tenn.)    676;   Johnson 

V.  Crysler,  1  Johns.  Cas.  (N.  Y.)  125.  v.  Douglass,  73  Mo.  168. 

""Palmer  v.  Ford,  70  111.  369.  '^^-Thropp   v.    Field,   26   N.   J.   Eq. 

"^Gist  V.  Smith,  78  Ky.  367;  Alex-  82;   Home  L.  Ins.  Co.  v.  Pierce,  75 

ander  v.  Touhy,  13  Kan.  64;  Rump  111.  426;    McNeil  v.  Amey,  2  W.  N. 

V.  Schwartz,  56  Iowa  611,  10  N.  W.  C.  65;  Hill  v.  Wand,  47  Kan.  340,  27 

99;   Michigan  M.  Ins.  Co.  v.  Bowes,  Pac.  988. 

42  Mich.  19,  51  TST.  W.  962;  Deyve  v.         '«>  Times     Co.     v.     Seibrecht,     15 

Jamison,    33    Mich.    94;    Bechtel   v.  Phila.  235. 


§    496]  TERMINATION    OF    TENANCY.  576 

obligor  to  believe  that  he  need  not  perform  promptly,  and  that  no  ad- 
vantage will  be  taken  of  the  failure,  it  is  equivalent  to  an  express 
agreement  to  that  effect  and  is  a  waiver  of  the  forfeiture.^^^  A  lessor 
having,  by  his  words  and  conduct,  caused  his  lessees  to  believe  that 
he  would  not  enforce  a  forfeiture  provided  for  in  the  lease  would  be 
equitably  estopped  from  seeking  to  avail  himself  of  the  forfeiture,  al- 
though the  consent  was  not  given  in  writing  as  required  by  the  lease. 
The  old  maxim  of  the  common  law  that  an  instrument  under  seal 
cannot  be  varied  or  abrogated  by  words  not  under  seaP*'^  is  not  appli- 
cable. There  is  no  question  of  any  variation  or  abrogation  of  the 
sealed  instrument  but  merely  a  waiver  by  the  lessor  of  his  right  to  de- 
clare a  forfeiture  thereunder.  If  the  facts  show  a  clear  intention  on 
the  part  of  the  lessor  to  waive  his  right  of  forfeiture,  there  is  no 
reason  why  he  should  not  be  held  to  such  waiver.  The  case  is  an  ap- 
propriate one  for  the  application  of  the  doctrine  of  estoppel.^ ®^  If  a 
lessor,  by  his  acquiescence,  induced  lessees  to  believe  that  strict  ob- 
servance of  their  covenant  to  pay  rent  was  not  required  by  him,  it  is 
inequitable  in  him  to  enforce  a  forfeiture  and  the  court  will  not  do 
it.^*'*  A  landlord  may  waive  his  right  to  declare  a  forfeiture  of  the 
lease  for  non-payment  of  rent  and  does  so  by  stating  a  future  date  at 
which  the  rent  must  be  paid.^^^ 

When  the  agency  of  the  landlord  is  involved  in  any  way  in  the  act 
which  is  to  work  a  forfeiture,  he  ought  so  to  act  as  to  make  it  appear 
clearly  that  he  intends  to  insist  upon  the  forfeiture.  Thus  a  landlord 
must  demand  a  bond  for  payment  of  rent  which  the  tenant  has 
agreed  to  give  or  his  failure  to  give  it  will  not  forfeit  the  lease.^'^'' 

"V^liere  a  landlord  waives  a  breach  for  which  he  might  forfeit  the 
lease,  the  effect  of  the  forfeiture  is  thereby  wiped  out  for  all  purposes, 
and  the  landlord  cannot  on  account  of  them  escape  from  the  obliga- 
tion of  his  covenant  to  renew.^*'^  The  doctrine  of  waiver  only  applies 
where  the  act  or  omission  of  the  tenant  renders  the  lease  voidable 
and  not  where  it  is  declared  absolutely  void  on  the  happening  of  the 
particular  event.  The  distinction  is  between  cases  where  the  landlord 
may  put  an  end  to  the  lease  by  an  entry  for  the  wrong  done  and 
those  where  the  wrong  terminates  the  lease  without  any  act  on  the  part 

"1  McCraw  v.  Old  Nortli  State  Ins.  '^  Thropp  v.  Field,  26  N.  J.  Eq.  82. 

Co.,  78  N.  Car.  149.  ^<'' Cradle  v.  Warner,  140  111.  123, 

"=Barnett  v.  Barnes,  73   111.  216;  29  N.  E.  1118. 

Hume   Bros.   v.   Taylor,   63    111.    43;  i""  Tate  v.  Crowson,  6  Ired.  L.   (N. 

Chapman  v.  McGrew,  20  111.  101.  Car.)  65. 

^"^  Moses  v.  Loomls,  156  111.  392,  40  ^"  Garnhart  v.  Finney,  40  Mo.  449. 
N.  E.  952. 


577  rORFEITCKE  FOR  BREACH  OF  CONDITIONS.       [§  497 

of  the  landlord.  In  the  former  case,  the  landlord  may  waive  the  for- 
feiture by  any  act  which  affirms  the  continuance  of  the  tenancy;  but 
in  the  latter  the  lease  being  ipso  facto  void  is  incapable  of  confirma- 
tion.^«« 

As  against  a  lien  claimant  upon  a  leasehold  estate  which  had  come 
into  the  hands  of  the  lessor,  it  was  claimed  that  the  lease  had  been 
forfeited  which  would  bar  the  lien,  but  the  court  held  the  facts  did 
not  justify  this  conclusion  and  that  the  lease  had  not  been  forfeited. 
No  notice  to  quit  or  to  surrender  had  been  given.  No  demand  of  pos- 
session was  made  and  the  leasehold  interest  was  not  terminated  by  any 
act  of  the  parties  amounting  to  a  forfeiture.  The  lessor  acquired  the 
lessee's  interest  by  purchase ;  he  paid  the  agreed  price,  took  possession 
of  the  premises  and  the  accounts  between  the  parties  were  considered 
settled.  These  acts  rebut  any  presumptions  that  might  tend  to  estab- 
lish any  intention  to  forfeit  the  lease,^®^ 

§  497.  One  common  mode  of  effecting  a  waiver  is  by  the  receipt 
of  rent  due  under  the  forfeited  lease,  and  the  rule  in  this  respect  is 
that  the  acceptance  by  the  lessor  of  rent  accruing  subsequent  to  the 
breach  of  condition  with  knowledge  of  the  existence  of  a  cause  for 
forfeiture  is  a  waiver  thereof.""  Moreover  where  a  lessor  sues  for  the 
entire  amount  of  rent,  he  ratifies  and  confirms  the  continued  existence 
of  the  lease,  and  waives  all  previous  forfeitures."^  And  distraining 
for  rent  after  a  forfeiture  has  been  held  to  have  the  same  effect."- 

'«*  Smith  V.  Saratoga  Co.  &c.  Ins.  Paige  427.  North  Carolina:  Rich- 
Co.,  3  Hill  (N.  Y.)  508;  Goodright  burg  v.  Hartley,  Busb.  L.  418; 
V.  Davids,  Cowp.  803;  Doe  v.  Rees,  Texas,  Gulf  &c.  R.  Co.  v.  Settegast, 
4  Bing.  N.  C.  384;  Doe  v.  Watts,  79  Tex.  256,  15  S.  W.  228.  Utah: 
7  Term  R.  79.  Young    Trust    Co.    v.    Wagener,    13 

"'Ellis  V.  Brisacher,  8  Utah  108,  Utah   236.   44   Pac.   1030.    Virginia: 

29  Pac.  879.  McKildoe    v.    Darracott,    13    Gratt. 

""  Alabama:    Dahm  v.  Barlow,  93  (Va.)  278.   Washington:    Pettygrove 

Ala.  120,  9  So.  598;  Brooks  v.  Rog-  v.  Rothchild,  2  Wash.  6,  26  Pac.  78. 

ers,  99  Ala.  423,  12  So.  61.    Calif  or-  Wisconsin:    Jolly  v.  Single,  16  Wis. 

nia:     McGlynn    v.    Moore,    25    Cal.  280;  Gomber  v.  Hackett,  6  Wis.  323. 

384;  Silva  v.  Campbell,  84  Cal.  420,  English:  Goodright  v.  Davids,  Cowp. 

24    Pac.    316.     Illinois:     Watson    v.  803;    Roe   v.    Harrison,    2   Term    R. 

Fletcher,     49     111.     498.      Missouri:  425;  Arnsby  v.  Woodward,  6  B.  &  C. 

Garnhart    v.    Finney,    40    Mo.    449.  519. 

Nebraska:    Stover  v.  Hazelbaker,  42  "^  Alexander    v.    Touhy,    13    Kan. 

Neb.  393,  60  N.  W.  397.    New  Hamp-  64;    Randol  v.   Tatum,   98   Cal.   390, 

shire:     Coon    v.    Brickett,    2    N.    H.  33  Pac.  433. 

163.    New  York:    Conger  v.  Duryee,  "-McKildoe  v.  Darracott,  13  Gratt. 

90  N.  Y.  594;  Stuyvesant  v.  Davis,  9  (Va.)   278. 

Jones  L.  &  T.— 37 


§    498]  TERMINATION    OF    TENANCY.  '  578 

It  seems  also  that  a  mere  demand  for  rent  accruing  after  a  forfeiture 
without  suit,  is  a  conclusive  waiver  of  the  forfeiture,  as  such  a  de- 
mand recognizes  the  lease  as  still  existing.^'^^ 

Upon  a  question  as  to  the  effect  of  the  receipt  of  rent,  knowledge 
of  the  facts  out  of  which  the  forfeiture  arises  is  essential  to  waiver. 
Without  such  knowledge  a  waiver  cannot  be  said  to  be  established  or 
exist.  Waiver  can  only  be  found  upon  knowledge  that  the  condition 
of  the  lease  was  broken.  The  forfeiture  must  be  known  as  one  of  the 
essential  elements  of  waiver.^'^*  Waiver  is  where  one  in  possession  of 
any  right,  whether  conferred  by  law  or  by  contract,  with  knowledge^ 
of  the  material  facts,  does  or  forbears  doing  something  inconsistent 
with  the  right,  or  of  his  intention  to  rely  on  it ;  thereupon  he  is  said 
to  have  waived  it  and  he  is  precluded  from  claiming  anything  by 
reason  of  it  afterward.  It  must  always  be  made  with  knowledge  and 
intent  to  waive.^^^  The  question  being  one  of  knowledge  and  intent, 
if  the  evidence  is  disputed  and  the  acts  relied  on  of  an  inconclusive 
nature,  the  question  is  for  the  jury.^^® 

The  effect  of  a  receipt  of  rent  to  waive  a  forfeiture  cannot  be 
qualified  by  subsequent  declarations  of  the  lessor  as  to  his  secret  in- 
tentions. Thus  a  letter  written  by  the  lessor  subsequent  to  the  waiver 
explaining  his  motives  in  accepting  the  rent  was  properly  held  not  to 
be  admissible  in  evidence  to  contradict  the  waiver.^" 

§  498.  The  mere  reception  of  rent  accrued  before  the  time  for 
the  termination  of  the  tenancy  is  not  a  waiver  of  the  notice  to  quit 
nor  a  renewal  of  the  lease ;  for  the  lessor  has  a  right  to  that  absolutely, 
whether  the  tenancy  is  determined  or  not.^^^  The  current  of  author- 
ity is  against  the  doctrine  that  by  the  acceptance  of  rent  which  fell 
due  before  the  alleged  determination  of  the  lease,  the  lessor  waived  his 

"*Camp   v.    Scott,    47    Conn.    366,  ^^  Bennecke  v.  Insurance  Co.,  105 

375;   Nagel  v.  League,  70  Mo.  App.  U.  S.  355. 

487.  "«Okey  v.  State  Ins.  Co.,   29  Mo. 

^"*  Robinson  v.  Boys,  61  N.  J.  L.  App.    105;    Fitch    v.    Woodruff    &c. 

179,    38    Atl.    813;    Collins   v.    Has-  Works,  29  Conn.  82;   Fox  v.  Hard- 

brouck,    56    N.    Y.    157;    Conger   v.  ing,  7  Cush.   (Mass.)   516;   Traynor 

Duryee,    90    N.   Y.    594;    Walker   v.  v.    Johnson,    1    Head    (Tenn.)     51; 

Engler,  30  Mo.  130;  Keeler  v.  Davis,  Robinson  v.  Boys,  61  N.  J.  L.  179, 

5  Duer  (N.  Y.)  507;  Crouch  v.  Wa-  38  Atl.  813. 

bash  &c.  R.  Co.,  22  Mo.  App.  315;  "^  Dahm  v.  Barlow,  93  Ala.  120,  9 

Dendy  v.  Nlcholl,  4   C.  B.    (N.   S.)  So.  598;    Brooks  v.  Rogers,  99  Ala. 

376,  93  E.  C.  L.  376;   Croft  v.  Lum-  433,  12  So.  61. 

ley,  5  E.  &  B.  648,  85  E.  C.  L.  648.  "'  Norris  v.  Morrill,  43  N.  H.  213. 


579  FORFEITURE  FOR  BREACH  OF  CONDITIONS.       [§  499 

right  to  repossess  himself  of  his  estate."'^  So  the  rule  may  be  stated 
to  be  that  the  receipt  by  a  lessor  of  rents  past  due  does  not  operate  as 
a  waiver  by  the  lessor  of  a  right  of  forfeiture  reserved  by  the  lease  for 
non-payment  of  rent  subsequently  falling  due.^^"  Furthermore  the 
mere  receipt  of  rent  due  before  forfeiture,  after  a  lease  has  been  for- 
feited, will  not  be  a  waiver  of  forfeiture.^^^  The  same  rules  would 
apply  where  the  right  to  forfeit  for  non-payment  of  rent  was  conferred 
by  statute  and  rent  accruing  prior  to  the  giving  of  a  notice  to  quit 
on  that  ground  had  been  received  after  the  notice  was  given. ^^^ 

§  499.  That  lessors  are  indulgent  and  accommodating,  allowing  a 
default  to  continue  and  the  amount  of  rent  due  to  increase  steadily, 
simply  failing  to  put  the  tenant  out,  cannot  be  regarded  as  proof  of 
their  election  to  waive  the  right  to  declare  a  forfeiture  and  take 
possession,  as  provided  for  in  the  lease.  A  lessor  of  real  property  will 
not  be  estopped  to  claim  the  right  to  possession  of  the  premises  for 
non-payment  of  rent  simply  because  he  permits  default  to  be  made, 
and  to  continue  as  to  such  payments.  Such  acts  cannot  at  any  rate 
be  regarded  as  an  election  for  the  future,  any  more  than  the  accept- 
ance  of  rent  from  month  to  month,  and  while  a  tenant  is  in  default 
in  the  performance  of  some  of  the  conditions  of  a  lease,  will  be  held 
to  relieve  him  of  performance  in  the  future.^**  However,  the  option 
given  to  a  lessor  to  declare  a  forfeiture  is  to  be  exercised,  if  exercised 
at  all,  within  a  reasonable  time  after  learning  of  the  lessee's  default ; 
in  other  words  it  is  possible  for  a  lessor,  by  neglecting  to  assert  his 
right  at  the  time  of  a  known  default,  or  within  a  reasonable  time  after- 
ward, to  waive  it.  In  this  particular  there  is  no  distinction  between 
leases  and  other  contracts.  It  is  a  general  rule  that  if  a  party  be- 
comes entitled  to  rescind  or  terminate  a  contract  or  claim  a  for- 
feiture, by  reason  of  the  default  of  another,  he  must  do  it  within  a 
reasonable  time.^^^  Yet  a  forfeiture  was  held  not  to  be  waived  in  con- 
sequence of  a  tenant's  holding  over  without  receiving  notice  to  quit, 

"» Bowman  v.  Foot,  29  Conn.  331.  Y.)     220;     Stuyvesant    v.    Davis,    9 

But  see  Coon  v.  Brickett,  2  N.   H.  Paige     (N.    Y.)     427;     Bleecker    v. 

163.  Smith,  13  Wend.  (N.  Y.)  530.  533. 

"» Silva  v.  Campbell,  84  Cal.  420,  ^^-  Carraher  v.  Bell,  7  Wash.  81,  34 

24   Pac.   316;    Bowman   v.    Foot,    29  Pac.  469. 

Conn.  331;  Pendill  v.  Union  Mining  "^Douglas  v.  Herms,  53  Minn.  204, 

Co.,    64    Mich.    172,    31    N.    W.    100;  54  N.  W.  1112. 

Phelps  V.  Illinois  &c.  R.  Co.,  63  111.  "*Gluck  v.  Elkan,  36  Minn.  80,  30 

468;  Robbins  v.  Conway,  92  111.  App.  N.  W.  446. 

173.  ^"Catlin  v.  Wright,   13   Neb.   558, 

''^Jackson   v.   Allen,   3    Cow.    (N.  14  N.  W.  530. 


§    500]  TERMIXATIOX    OF    TEXAXCY.  580 

for  the  mere  holding  over  would  not  entitle  the  tenant  to  notice  to 
quit.  To  amount  to  a  waiver,  the  holding  over  must  be  under  such 
circumstances  as  to  Justify  the  court  in  finding  a  new  term  had  been 
created  between  the  parties.  ^®^ 

§  500.  The  doctrine  of  waiver  does  not  apply  when  the  covenant 
broken  is  a  continuing  one.  "When  the  failure  to  comply  with  a  con- 
tinuing covenant  constitutes  a  breach  of  condition  for  which  the  lease 
may  be  forfeited,  the  receipt  of  rent  subsequently  accruing,  although 
operating  to  cure  past  breaches,  does  not  dispense  with  the  condition 
and  for  future  non-compliance  the  lease  may  be  forfeited.^*"  The 
fact  that  former  breaches  of  the  condition  of  a  lease  are  waived  by  the 
acceptance  of  rent,  and  that  a  former  action,  in  which  the  forfeiture 
of  the  lease  was  claimed,  is  dismissed,  would  not  preclude  the  right  of 
the  lessor  to  maintain  an  action  for  subsequent  breaches  of  covenant? 
in  the  lease,  which  are  continuing  in  their  nature.^^*  The  waiver  of 
one  forfeiture  is  of  course  not  a  waiver  of  a  subsequent  forfeiture ;  and 
if  the  act  of  forfeiture  be  continuing,  a  waiver  of  a  right  of  reentry 
for  one  breach  will  not  preclude  a  reentry  for  a  new  or  continuing 
breach.  Thus  a  lessor  may  take  advantage  of  a  forfeiture  occurring 
from  day  to  day,  as  in  the  case  of  a  neglect  to  repair  or  keep  a  stair- 
way and  area  open  and  clean  and  free  from  rubbish  or  the  like,  not- 
withstanding a  previous  receipt  of  rent.^^^  So  also  where  the  cove- 
nant was  that  rooms  should  not  be  used  for  certain  purposes  it  was 
held  that  there  was  a  breach  of  this  covenant  every  day  during  the 
term  that  they  were  so  used ;  and  that  the  lessor  was  not  precluded, 
by  receiving  rent  subsequent  to  the  commencement  of  such  user,  from 
taking  advantage  of  the  forfeiture,  provided  the  user  continued  after 
such  receipt  of  rent.^^°  Covenants  against  encumbering  fixtures  and 
those  against  breaking  city  ordinances  have  been  classed  in  the  same 
category  and  held  to  be  continuing  in  their  nature.^'' ^  But  a  sub- 
lease is  no  more  a  continuing  act  of  forfeiture  than  an  assignment. 
The  cases  are  numerous  in  which  forfeitures  by  sub-letting  have  been 

1^  Calderwood   v.   Brooks,   28   Cal.  ^*' Jones  v.  Durrer,  96  Cal.  95,  30 

151.  Pac.  1027. 

^"McGlynn  v.  Moore,  25  Cal.  384;  ^*=' Gluck  v.  Elkan,  36  Minn.  80,  30 

Jones  V.  Durrer,  96  Cal.  95,  30  Pac.  N.  W.  446;   Doe  v.  Gladwin,  6  A.  & 

1027;   Gluck  v.  Elkan,  36  Minn.  80,  E.  (N.  S.)   953,  51  E.  C.  L.  953. 

30  N.  W.  446;  Alexander  v.  Hodges,  ^'°  Doe  v.   Woodbridge,  9   B.   &  C. 

41  Mich.  691,  3  N.  W.  187;    Doe  v.  376,  17  E.  C.  L.  173. 

Gladwin,  6  A.  &  E.   (N.  S.)   953,  51  "'Alexander  v.  Hodges,  41  Mich. 

E.  C.  L.  953;   Doe  v.  Woodbridge,  9  691,  3  N.  W.  187. 
B.  &  C.  376,  17  E.  C.  L.  173. 


581  PORPEITURE  POR  BREACH   OF   CONDITIONS.  [§    501 

held  to  be  waived  by  the  subsequent  acceptance  of  rent,  yet  there  could 
have  been  no  difficulty  in  enforcing  the  forfeitures  in  these  cases  if  the 
breaches  had  been  continuing.  A  license  to  assign  is  a  dispensation 
of  the  whole  condition  whereas  it  has  been  held  that  a  lessor  who  has 
a  right  of  reentry  on  a  breach  of  a  covenant  not  to  underlet,  does  not, 
by  waiving  his  entry  on  one  underletting,  waive  his  right  to  reenter 
on  a  subsequent  underletting.  In  the  former  case  the  waiver  is  of  the 
condition  itself;  in  the  latter,  only  of  the  forfeiture  for  a  particular 
breach.  But  in  both  cases  each  breach  is  a  single  act  and  not  a  con- 
tinuing act  of  f  orf  eiture.^^2 

There  is  nothing  in  the  nature  of  a  covenant  to  build  by  a  given 
time  that  indicates  that  a  continued  failure  to  perform  the  covenant 
will  produce  a  succession  of  breaches;  but,  on  the- contrary,  it  more 
nearly  resembles  in  this  respect,  the  covenant  not  to  assign,  or  for  a 
reentry  in  case  of  the  bankruptcy  of  the  lessee,  in  both  of  which  cases, 
the  breach,  if  it  takes  place,  is  once  for  all.  The  proposition  that  a 
covenant  to  build  is  a  continuing  covenant  is  unsupported  by  reason 
or  authority,  and  therefore  the  receipt  of  rent  after  notice  of  the 
breach  was  a  waiver  of  the  right  to  enter  for  the  forfeiture.^®' 

§  501.  Liability  for  rents  subsequent  to  a  forfeiture. — Under  the 
ordinary  provision  that  a  lease  should  be  void  at  the  election  of  the 
lessor  upon  breach  of  condition,  the  entry  by  the  lessor  for  such  breach 
terminates  the  lease  and  with  it  the  right  to  collect  future  rents.^®* 
Where,  for  non-payment  of  rent,  a  tenant  has  been  removed  from  the 
premises  by  summary  proceedings  under  the  statute,  he  can  claim  ex- 
emption from  liability  for  rent  as  such  during  the  remainder  of  the 
term.  Only  the  rent  accrued  up  to  the  determination  of  the  lease  can 
be  recovered.^®^  After  a  lessor  has  availed  himself  of  a  privilege  to 
declare  a  forfeiture  for  non-payment  of  rent,  the  lessee  may  vacate 
the  premises  and  not  be  liable  for  rent  beyond  the  current  month. ^®® 

A  provision  in  a  lease  that  on  breach  of  condition  the  lessor  may  re- 
enter without  such  reentry  working  a  forfeiture  of  the  rent  to  be  paid 
is  valid.  If  not  as  a  stipulation  for  future  rents  in  a  strict  sense,  it 
is  valid  as  a  stipulation  for  damages.  The  rent  collected  from  other 
tenants  by  a  landlord  inures  to  the  benefit  of  the  former  lessee  though 

"=McKildoe  v.  Darracott,  13  Grat.  47    111.   App.   568;    Jones  v.   Carter, 

(Va.)    278;    Doe  v.  Bliss,  4  Taunt.  15  M.  &  W.  718. 
735,  Archbold  97.  "=  Campbell  v.  Nixon,  2  Ind.  App. 

'"'  McGlynn  v.  Moore,  25  Cal.  384.  463,  28  N.  E.  107. 

"'  Grommes  v.  St.  Paul  Trust  Co.,         ''"^  King   v.    Davies,    2    Kan.   App, 

147  111.  634,  35  N.  E.  820,  affirming  634,  42  Pac.  942. 


§    503]  TERMINATION    OF    TENANCY.  583 

the  acceptance  of  such  rent  by  the  landlord  is  not  a  surrender  of 
his  rights  against  the  original  lessee.^^^  It  is  entirely  unobjection- 
able to  insert  in  a  lease  a  provision  that  after  entry  by  the  lessor  for 
breach  of  condition  the  obligation  of  the  lessee  to  pay  rent  shall  con- 
tinue as  before.^^^  So,  provisions  in  a  lease  that  upon  a  reentry  for 
breach  of  condition  the  landlord  may  relet  the  premises  for  the  ac- 
count of  the  lessee,  holding  him  for  any  deficiency  below  the  agreed 
rate,  are  not  uncommon  and  are  uniformly  upheld.  ^^^ 


III.    Effect  of  Non-Payment  of  Bent. 

§  502.  The  right  to  enter  for  non-payment  of  rent  is  not  an  in- 
cident of  a  lessor's  estate  at  common  law,  but  must  be  specially  re- 
served in  the  lease.  At  common  law  a  refusal  or  neglect  to  pay  rent 
does  not  work  a  forfeiture  of  the  term,  unless  the  lease  contains  ex- 
press conditions  of  forfeiture  in  case  of  the  non-payment  of  rent.^"" 
This  rule  is  not  affected  by  those  statutes  making  the  service  of  the 
complaint  in  an  ejectment  suit  a  substitute  for  demand  and  entry. 
These  statutes  do  not  assume  to  give  a  right  of  reentry  where  such 
right  does  not  already  exist,  but  merely  provide  that  where  the  right 
is  already  subsisting  the  commencement  of  an  action  shall  be  equiva- 
lent to  an  actual  entry.^*'^  Non-payment  of  rent  is  no  cause  for  the 
forfeiture  of  the  lease  unless  it  is  expressly  so  provided.  The  tenant 
can  retain  possession  until  the  end  of  the  term,  though  it  be  morally 
certain  that  the  landlord  will  receive  no  rent.^°^  So  failure  to  make 
due  payment  of  the  royalties  reserved  in  a  mining  lease  will  not,  in 
and  of  itself,  work  a  forfeiture,  when  the  lease  does  not  provide  that 
it  shall  become  void  in  the  event  of  non-payment.-"^  In  one  case  a 
tenant  entered  and  occupied  under  a  lease,  agreeing  to  make  certain 
improvements  in  lieu  of  paying  rent,  but  failed  to  make  the  improve- 

"^Grommes  v.  St.  Paul  Trust  Co.,  leaf,  11  Gray  (Mass.)  98;  Hodgkins 

147  111.  634,  35  N.  E.  820,  affirming  v.  Price,  137  Mass.  13. 

47  111.  App.  568.  '°'  Woodcock  v.  Carlson,  41  Minn. 

"^Heims    Brewing    Co.    v.    Flan-  542,  43  N.  W.  479. 

nery,  137  111.  309,  27  N.  E.  286.  '"•  Buckner    v.    Warren,    41    Ark. 

•'"  Grommes  v.  St.  Paul  Trust  Co.,  532;  Chipman  v.  Emeric,  3  Cal.  273; 

147    111.    634,   35    N.   E.    820,    47    111.  Wirt  v.  Philips,  1  Hawaii  61;    Beal 

App.   568;    Hall  v.  Gould,  13  N.  Y.  v.   Bass,  86   Me.   325,   28   Atl.   1088; 

127;  Morgan  v.  Smith,  70  N.  Y.  537.  Meroney  v.  Wright,  81  N.  Car.  390. 

=*' Woodcock  v.  Carlson,  41  Minn.  ="=  Wakefield  v.  Sunday  Lake  Min. 

542,  43  N.  W.  479;  Bartlett  v.  Green-  Co.,    85    Mich.    605,    49    N.    W.    135; 

Dare  v.  Boylston,  6  Fed.  493. 


583  EFFECT   OF   NON-PAYMENT    OF    RENT.  [§'   503 

ments  according  to  agreement.  He  did  not  thereby  forfeit  his  lease 
without  any  further  act  on  the  part  of  the  lessor,  but  was  entitled  to 
occupy  under  it,  and  could  only  be  held  liable  for  damages  accruing 
by  reason  of  his  failure  to  perform.  He  was  not  liable  for  use  and 
occupation.^''* 

Forfeiture  for  non-payment  of  rent  has  always  been  a  harsh  remedy, 
liable  to  produce  hardships,  and  has  not  been  favored  by  the  law. 
Strict  compliance  with  several  important  requisites  was  therefore  re- 
quired.^"^ 

When  a  right  of  entry  was  made  contingent  upon  there  being  no 
sufficient  distress  for  rent^  it  was  held  that  no  right  of  reentry  accrued 
until  it  was  shown  that  there  was  no  sufficient  distress  upon  the  prem- 
ises.^°^  But  ordinarily,  in  enforcing  a  forfeiture  for'  non-payment  of 
rent,  it  is  immaterial  whether  there  is  a  sufficient  distress  on  the 
premises  to  satisfy  the  claim  for  rent.^'^^  Where  continued  default  in 
the  payment  of  rent  for  a  certain  period  is  a  ground  for  forfeiture, 
the  only  method  of  avoiding  the  forfeiture  is  payment  or  tender  of  the 
rent  during  such  period.  A  tender  before  the  day  when  the  rent  is 
due  will  be  unavailing.^"^ 

§  503.  Necessity  for  demanding  rent. — Even  when  the  right  of  re- 
entry is  reserved  for  breach  of  a  covenant  to  pay  rent,  the  old  common- 
law  rule  was  that,  before  there  would  be  a  forfeiture  for  non-pay- 
ment, rent  must  be  demanded  in  the  precise  sum  due,  on  the  day  it  is 
due,  at  some  convenient  hour  before  sunset  on  that  day,  on  the  prem- 
ises, at  the  most  notorious  place  thereon,  and  if  there  be  a  dwelling- 
house,  at  the  front  door  thereof. ^''^  The  common-law  rule  was  so  strict 

="'*Raybourn   v.   Ramsdell,   78    111.  4     Colo.     303.       New     Hampshire: 

622.  Jewett  v.  Berry,  20  N.  H.  36;  Jones 

=">=  Chapman  v.  Kirby,  49  111.  211.  v.  Reed,  15  N.  H.  68;  McQuesten  v. 

^'^Den  V.  Craig,  15  N.  J.  L.  191.  Morgan,  34  N.  H.  400.     Tennessee: 

Long  discussion  of  early  law  in  re-  Parks  v.  Hays,  92  Tenn.  161,  22  S. 

gard  to  rent.  W.    3.     Illinois:    Sexton   v.    Carley, 

^"^  Becker  v.   Werner,    98    Pa.    St.  47   111.  App.  316 ;   Williams  v.  Van- 

555.  derbilt,   145   111.  238,  34  N.  E.  476; 

■"^  Illingworth  v.  Miltenberger,  11  Chadwick    v.    Parker,    44    111.    326. 

Mo.  80.  Nebraska:  Haynes  v.  Union  Im.  Co., 

^''^  Indiana:  Phillips  v.  Doe,  3  Ind.  35  Neb.  766,  53  N.  W.  979.     Massa- 

142;    Jenkins    v.    Jenkins,    63    Ind.  chusetts:    Chapman  v.   Harney,   100 

415.     California:   Gage  v.  Bates,  40  Mass.  353.     English:    Doe  v.  Wand- 

Cal.  384.     Kansas:    Chandler  v.  Mc-  lass,    7    Term    R.    113,    117.      Ohio: 

Ginning,  8  Kan.  App.  421,  55  Pac.  103.  Boyd  v.  Talbert,  12  Ohio  212.     Ver- 

Virginia:   Johnston  v.  Hargrove,  81  mont:  Willard  v.  Benton,  57  Vt.  286. 

Va.  118.    Colorado:  Miller  v.  Sparks,  United  States:  Connor  v.  Bradley,  1 


§    503]  TERMINATION    OF   TENAXCY.  oS-i 

that  the  slightest  failure  to  comply  with  any  one  of  these  requirements 
rendered  the  demand  nugatory.^ ^°  The  law  fixes  with  precision  the 
time  and  place  for  a  demand  of  rent,  and  if  the  demand  is  not  made 
then  and  there,  the  lessee  is  allowed  to  infer  that  the  lessor  intends  to 
waive  his  right  to  insist  on  a  forfeiture  of  the  estate.  This  rule  apprises 
a  tenant  of  the  exact  time  and  place  when  and  where  he  is  to  be  called 
on  for  the  rent,  and  gives  him  opportunity  to  be  ready  to  meet  the 
demand  and  save  his  estate.  When  the  forfeiture  was  to  take  place 
on  default  in  payment  of  rent  for  thirty  days,  it  was  held  that  the  de- 
mand should  be  made  either  on  the  day  the  rent  was  due  or  on  the 
last  day  of  the  thirty-day  period.  If  the  lessor  might  come  to  the 
premises  on  any  day,  and  at  any  time  of  the  day,  for  thirty  days,  or 
as  the  condition  of  some  leases  are  for  a  year,  and  make  a  sufficient 
demand,  the  apparent  object  of  the  rule  which  fixes  the  time  and  place 
for  a  demand  of  rent  would  not  be  answered.  The  lessee  would  have 
no  means  of  knowing  when  the  lessor  would  come  for  the  rent.^^^  It 
was  also  essential  that  a  demand  be  made  in  fact,  though  no  person  be 
present  on  the  premises  to  comply  with  it.^^^  But  proceedings  to  dis- 
possess a  tenant  for  non-payment  of  rent  are  not  invalidated  because 
of  demand  of  the  rent  with  interest ;  the  landlord  is  entitled  to  inter- 
est, as  an  incident  of  the  principal,  from  the  time  of  the  default  in 
payment,  and  is  justified  in  demanding  it.^"  Moreover,  no  particular 
form  of  words  is  necessary  in  making  a  demand;  a  party  making  it 
must  have  intended  to  make  it,  and  the  other  party  must  have  under- 
stood that  a  demand  was  made ;  all  that  is  necessary  is  that  both  par- 
ties should  understand  by  what  was  said  and  done  that  a  demand  wa& 
made,  and  the  tenant  need  not  be  told  what  will  be  the  consequences, 
if  he  does  not  pay.^^*  A  convenient  time  before  sunset  means  immedi- 
ately preceding  it — time  enough  before  to  count  and  pay  the  money ; 
and  the  jury  cannot  be  allowed  to  find  that  an  earlier  time  is  a  con- 
venient time;  it  is  a  matter  of  law.^^^ 

The  landlord  can,  nevertheless,  bring  an  action  of  use  and  occupa- 
tion for  his  rent  before  making  any  demand  for  it.-^*'  While  a  demand 

How.    211.      Minnesota:    Byrane    v.  Byrane  v.  Rogers,  8  Minn.  281;  Con- 
Rogers,    8    Minn.    281.      New   York:  nor  v.  Bradley,  1  How.  (U.  S.)  211; 
Jackson  v.  Harrison,  17  Johns.  66;  Adams  on  Ejectment,  4th  ed.,  187. 
Van   Rensselaer  v.  Jewett,   2  N.  Y.         ^'^  People  v.  Dudley,  58  N.  Y.  323. 
141.  ="*Norris  v.  Morrill,  43  N.  H.  213. 

"'Bacon    v.    Western    Furniture        "'Smith  v.  Whitbeck,  13  Ohio  St. 

Co.,  53  Ind.  229.  471. 

"'  McQueston  v.  Morgan,  34  N.  H.        ""  Spaulding  v.   M'Osker,  7  Mete. 

400;  Jones  v.  Reed,  15  N.  H.  68.  (Mass.)   8. 

"=  Chapman  v.  Kirby,  49  111.  211; 


585  EFFECT   OF   NON-PAYMENT   OF  RENT.  [§    504 

is  necessary  before  a  lessor  proceeds  to  enforce  a  forfeiture,  none  is 
required  in  an  action  of  covenant  for  rent.  The  law  is  well  settled 
that  in  an  action  of  covenant  for  rent  no  demand  is  necessary.^" 

There  was  probably  no  doctrine  of  the  common  law  that  required 
a  landlord  to  make  a  demand  before  forfeiture  on  breach  of  a  covenant 
to  repair,  or  insure,  or  keep  insured,  or  similar  agreements.  The  great 
strictness  required  of  landlords  who  sought  forfeitures  for  the  non- 
payment of  rent  arose  from  the  extraordinary  remedy  they  possessed 
for  the  collection  of  that  character  of  debt,  by  way  of  distress.  A  land- 
lord would,  under  certain  contingencies,  find  himself  embarrassed  to 
decide  when,  where,  and  what  to  demand  of  his  tenant  should  a  demand 
be  a  prerequisite  to  his  right  to  reenter  for  non-payment  of  taxes.^^^ 

A  statement  by  a  tenant  that  he  did  not  acknowledge  an  alleged 
assignee,  and  did  not  wish  to  pay  rent  to  him,  is  not  a  refusal  to  pay 
rent,  sufficient  to  cause  a  forfeiture,  if  in  fact  he  did  not  know  the 
assignee.  The  tenant  did  just  what  any  tenant  ought  to  do  when  called 
upon  to  acknowledge  the  title  of  a  stranger  and  pay  rent  to  him.  If 
leases  could  be  forfeited  by  making  secret  assignments  of  a  lease  and 
demand  made  by  the  assignee  without  making  known  the  fact  of  as- 
signment, no  tenant  would  ever  be  safe.^^^ 

§  504.  An  express  stipulation  in  a  lease  dispensing  with  the  re- 
quirement for  a  demand  for  rent  is  valid  and  entitles  the  lessor  to  en- 
force a  forfeiture  without  making  any  demand.^'"  The  lease  may  pro- 
vide in  express  terms  that  the  estate  shall  be  forfeited  if  the  rent  is. 
not  paid,  without  any  entry  and  though  no  legal  demand  of  rent  is 
•  made;  and  in  such  case  the  agreement  of  the  parties  supersedes  the 
general  rule  of  law  as  to  the  necessity  for  a  demand,-^^  It  is  a  univer- 
sally recognized  principle  that  the  demand  for  payment  of  rent  re- 
quired by  some  statutes  and  at  common  law  as  a  condition  precedent 

"'M'Murphy    v.    Minot,    4    N.    H.  Pac.  621;    Shanfelter  v.  Horner,  81 

251;   Remsen  v.   Conklin,  18  Johns.  Md.    621,    32    Atl.    184;    Belinski    v. 

(N.  Y.)   447;  Coon  v.  Brickett,  2  N.  Brand,    76    111.    App.    404;    Sweeney 

H.  163;  Com.  Dig.  Rent.  D.  4.  v.    Garrett,    2    Disney    (Ohio)    601 

-"Byrane  v.  Rogers,  8  Minn.  281;  Byrane    v.    Rogers,    8    Minn.    281 

Garner  v.  Hannah,  6  Duer   (N.  Y.)  McQuesten  v.  Morgan,  34  N.  H.  400 

262.     But  see   Tate   v.   Crowson,   6  Doe  v.  Masters,  2  B.  &  C.  490;  Good- 

Ired.  L.    (N.   Car.)    65;    Jackson   v.  right  v.  Cator,  Doug.  478. 
Harrison,  17  Johns.  (N.  Y.)   66.  -'McQuesten  v.  Morgan,  34  N.  H. 

''» O'Connor  v.  Kelly,  41  Cal.  432.  400;    Thomas    v.    Walmer,    18    Ind. 

^''''Faylor    v.    Brice,    7    Ind.    App.  App.  112,  46  N.  E.  695;   Island  Coal 

551,  34  N.  E.  833;   Fifty  Associates  Co.  v.   Combs,  152   Ind.  379,   53   N. 

V.  Howland,  5   Cush.    (Mass.)    214;  E.  452. 
Lewis  V.   Hughes,  12   Colo.   208,   20 


§•  504]  TERMINATION   OF   TENANCY.  586 

to  reentry  may  be  waived  by  the  parties  for  whose  protection  it  is  re- 
quired. ^^^  A  clause  in  a  lease  waiving  notice,  demand  for  the  payment 
of  rent  or  possession,  and  agreeing  that  the  fact  of  the  non-payment 
of  the  rent  should  constitute  a  forcible  detainer  is  valid  and  effective 
in  an  action  under  the  Forcible  Detainer  Act.^^^  With  even  greater 
reason  a  waiver  of  notice  and  demand  would  be  effective  where  the 
lessor  is  in  quiet  possession  after  the  alleged  forfeiture.^^*  After  such 
a  waiver  the  right  of  a  lessor  to  enter  is  not  dependent  upon  his  having 
declared  a  forfeiture  of  the  lease,  but  exists,  if  at  all,  because  of  a 
lawful  termination  of  the  lease  by  some  act  or  omission  constituting  a 
breach  of  condition.  So  that  a  lessor  would  not  be  guilty  of  a  trespass 
in  making  a  peaceable  entry.^^^ 

A  provision  that,  if  rent  shall  be  in  arrear  more  than  ninety  days, 
the  tenancy  shall  be  at  once  and  without  notice  of  any  kind  deter- 
mined, was  held  to  render  a  demand  for  rent  unnecessary.  This  con- 
dition was  not  subject  to  the  common-law  requirements  as  to  demand 
and  entry.2^*'  It  has  been  held  that  a  provision  that  lessor  may  enter 
"without  further  demand"  means  that  no  demand  at  all  is  necessary. 
It  was  argued  that  the  word  "further"  implied  that  a  previous  demand 
had  been  made ;  but  that  would  be  an  absurdity,  for  one  demand  would 
be  sufficient,  without  an  agreement  that  no  other  demand  should  be 
required.  The  word  is  not  so  appropriate  as  the  word  "any,"  but  it  has 
the  same  meaning  when  so  used  in  a  lease,  and  has  been  so  construed 
in  a  similar  condition.^^^  If  the  stipulation  only  waives  the  demand, 
the  landlord  must  claim  his  forfeiture  at  the  time  it  accrues  by  reentry 
or  suit,  or  he  will  lose  it  in  the  same  manner  he  would  have  done  had 
a  demand  been  necessary  and  he  failed  to  make  it.  The  demand  is  all 
that  is  waived ;  the  intention  to  assert  his  rights  under  the  forfeiture  in 
every  other  particular  is  as  necessary  as  without  the  stipulation. 
Furthermore,  a  waiver  of  demand  on  the  day  the  rent  was  due  would 
not  relieve  the  landlord  from  the  duty  of  making  a  demand  if  he 
wishes  to  enter  at  a  subsequent  date;^^^   But  where  a  lease  provided 

^  Pendill  v.  Union  Mining  Co.,  64  ^  Schaefer  v.   Silverstein,   46   111. 

Mich.  172,  31  N.  W.  100.  App.  608. 

--'Espen    V.     Hinchliffe,    131    111.  -'=  Shanfelter    v.    Horner,    81    Md. 

468,  23  N.  E.  592;   Jackson  v.  Col-  621,  32  Atl.  184;  Cooke  v.  Brice,  20 

lins,  11  Johns.   (N.  Y.)   1;   Sweeney  Md.  397. 

V.    Garrett,    2    Disney    (Ohio)    601;  ==^ Fifty  Associates  v.  Rowland,  5 

Fifty     Associates     v.     Rowland,     5  Cush.  (Mass.)  214;  1  Bac.  Abr.  Con- 

Cush.    (Mass.)   214;   Eichart  v.  Bar-  dition,  O,  2. 

gas,  12  B.  Mon.  (Ky.)  462.  -^  Byrane  v.  Rogers,  8  Minn.  281. 

"^Island  Coal  Co.   v.  Combs,  152 
Ind.  379,  53  N.  E.  452. 


587  EFFECT   OF    NON-PAYMEXT    OF    RENT.  [§    505 

that  no  notice  should  be  necessary,  on  failure  to  pay  rent,  to  terminate 
lease,  it  was  held  that  demand  for  rent  was  unnecessary  as  well.^^^ 

A  provision  in  a  clause  for  forfeiture  for  non-payment  of  rent  re- 
quiring ten  days'  notice  to  the  lessee  may  be  waived  by  him,  and  where 
the  lessee  agreed  to  end  the  lease  and  surrender  the  term,  his  right  to 
notice  cannot  be  insisted  upon.^^** 

§  505.  Damages  from  an  alleged  trespass  by  a  landlord  will  not 
consitute  such  a  legal  set-off  against  an  unpaid  quarter's  rent  that 
it  will  prevent  a  forfeiture  for  non-payment  of  rent.-'^^  In  summary 
proceedings  for  non-payment  of  rent,  the  failure  of  the  landlord  to 
repair  promptly  the  premises  according  to  his  agreement  cannot  be 
made  the  subject  of  a  counter-claim,  though  it  might  be  in  an  action 
for  rent.^^^  A  counter-claim  against  a  landlord  for  his  use  of  a 
part  of  the  premises  has,  however,  been  held  to  prevent  a  forfeiture  of 
the  lease  for  non-payment  of  rent  in  advance  as  stipulated  in  the 
lease.-^^  An  agreement  that  the  cost  of  repairs  should  be  deducted 
from  the  rent  operates  as  payment  and  prevents  a  forfeiture.  But  an 
unsettled  account,  which  would  be  good  as  a  set-off  against  the  claim 
for  rent,  does  not  make  an  entry  unlawful,  because  such  an  account 
would  not  support  a  plea  of  payment  in  an  action  for  the  rent.  In 
covenanting  to  pay  rent  according  to  the  terms  of  a  lease,  the  lessee 
undertakes  to  pay  it  in  money,  but  it  is  competent  for  the  parties  to 
agree  to  receive  and  pay  any  part  of  it  in  any  other  way,  and  if  a 
lessee  does  service  or  furnishes  labor  or  materials  for  the  lessor,  under 
an  agreement  that  the  cost  thereof  should  apply  in  payment  of  rent, 
the  service,  when  rendered,  or  the  labor  and  materials,  when  fur- 
nished, are  at  once  payment  of  the  rent  pro  tanto-  If  their  value  is 
equal  to  the  accrued  rent  when  the  lessor  enters  the  leased  premises, 
his  entry  is  unlawful,  because  the  rent  has  been  paid  and  there  has  been 
no  breach  of  covenant  by  the  lessee.  If,  however,  the  lessee  has  an  un- 
settled account  against  the  lessor  for  services  rendered,  labor  and  ma- 
terials furnished,  or  goods  sold,  without  any  agreement  that  it  should 
be  appplied  in  payment  of  the  rent,  the  entry  is  not  unlawful,  because 
such  account  would  not  support  a  plea  of  payment  and  satisfaction  in 

229  payior  v.  Brice,  7  Ind.  App.  551,         ^-  Pearson  v.   Germond,  31   N.  Y. 

34  N.  E.  833.  S.  358,  83  Hun  (N.  Y.)  88;  Peterson 

^'»  Clator  v.  Otto,  38  W.  Va.  89,  18  v.  Krenger,  67  Minn.  449,  70  N.  W. 

S.  E.  378.  567. 

^'Willis    v.    Branch,    94    N.    Car.         ^'Parsons    v.    Wright,    102    Iowa 

142;    Abrams    v.    Watson,    59    Ala.  473,  71  N.  W.  351. 
524. 


§§'   506-508]  TERMINATION   OF    TENANCY.  588 

an  action  for  the  rent,  though  it  might  be  availed  of  by  way  of  set-off, 
or  in  proceedings  in  equity  to  prevent  the  lessor  from  entering  and  ex- 
pelling the  lessee.^^^ 

§  506.  Arizona. — Whenever  any  tenant  shall  neglect  or  refuse  to 
pay  his  rent  when  the  same  shall  be  due,  and  said  rent  shall  be  in  ar- 
rears and  unpaid  for  five  days  thereafter,  .  .  .  the  landlord  shall 
have  the  right  by  law  to  reenter  and  take  possession  of  said  leased 
premises  for  non-payment  of  rent,  and  may,  without  any  formal  de- 
mand or  reentry,  commence  an  action  for  the  recovery  of  said  prem- 
ises.^^' 

§  507.  Arkansas. — Whenever  a  half-year's  rent  or  more  is  in 
arrear  from  a  tenant,  the  landlord,  if  he  has  a  subsisting  right  by 
law  to  reenter  for  the  non-payment  of  said  rent,  may  bring  an  action 
to  recover  the  possession  of  the  demised  premises.  The  service  of  the 
summons  in  such  action  shall  be  deemed  and  stand  instead  of  a  de- 
mand of  the  rent  in  arrear,  and  of  a  reentry  on  the  demised  prem- 
ises.^^^  A  tender  of  rent  due  after  notice  of  suit  by  landlord,  but 
before  suit  brought,  is  held  sufficient  to  entitle  a  tenant  to  relief  from 
forfeiture,  and  the  landlord  could  not  then  recover  possession.^^^  A 
reletting  of  the  premises  to  a  tenant  after  recovering  a  judgment  for 
possession  against  him  in  such  a  suit,  is  a  satisfaction  of  the  judgment, 
and  an  execution  on  the  judgment  after  the  new  lease  will  be  en- 
joined.^^^ 

§  508.  California. — A  lessee  is  guilty  of  unlawful  detainer  if  he 
continues  in  possession  of  property  after  default  in  payment  of  rent 
according  to  the  terms  of  his  lease,  and  after  three  days'  notica  in 
writing  requiring  its  payment  or  possession  of  the  property.  Failure 
to  perform  covenants  other  than  for  the  payment  of  rent  has  a  similar 
effect,  and  in  cases  where  performance  has  become  impossible,  three 
days'  demand  for  performance  is  unnecessary.^^^  But  even  then  notice 
is  necessary  before  the  commencement  of  an  action  of  forcible  detainer. 
Where  the  relation  of  landlord  and  tenant  exists,  and  it  is  sought  be- 
fore the  expiration  of  the  period  fixed  in  the  lease  to  obtain  the  pos- 
session of  the  demised  premises  for  a  failure  to  perform  any  of  the 

=^^  Fillebrown  y.  Hoar,  124  Mass.  "'Geary  v.  Parker,  65  Ark.  521, 
580.  47  S.  W.  238,  53  S.  W.  567. 

^  Civil  Code  1901,  §  2693.  ^-  Barney  v.  Cain,  37  Ark.  127. 

'^  Dig.  of  St.  1894,  §§  4466,  4468.  -^^  Code   of   Civil   Procedure   1903, 

§  1161. 


589  EFFECT    OF   NOX-PATMEXT    OF   EEXT.  [§§    509-512 

covenants  or  conditions  therein,  a  demand  is  always  necessary  before 
an  action  in  the  nature  of  a  summary  proceeding  under  the  code  can 
be  invoked  to  dispossess  the  tenant.  The  only  knowledge  that  the  ten- 
ant can  have  of  his  landlord's  purpose  to  stand  upon  the  strict  terms 
of  the  lease  and  to  dispossess  him  for  a  failure  to  perform  its  cove- 
nants is  through  actual  notice  of  that  fact  by  demand  for  possession. 
The  demand  operates  both  as  a  notice  of  the  landlord's  election  to  in- 
sist on  a  forfeiture  of  the  lease  and  as  requiring  surrender  of  posses- 
sion by  the  tenant.^*" 

§509.  Colorado. — It  constitutes  unlawful  detention  for  a  tenant 
to  hold  over  after  any  default  in  payment  of  rent  pursuant  to  the 
agreement  under  which  he  holds  and  after  the  service  of  three  days' 
written  notice  in  the  alternative,  requiring  the  payment  of  rent  or  the 
possession  of  the  premises.  No  demand  for  rent  on  the  day  on  which  it 
becomes  due  is  necessary  to  work  a  forfeiture  for  non-payment  of  rent. 
Holding  over  without  permission,  contrary  to  any  other  condition  or 
covenant  of  the  lease,  after  three  days'  notice  in  writing,  is  also  an 
unlawful  detainer.^*^ 

§  510.  ConnecticTit. — Whenever  by  the  terms  of  a  parol  lease  of 
real  estate  rent  is  agreed  to  be  paid  at  stated  periods,  and  such  rent 
shall  be  and  remain  due  and  unpaid  for  a  period  of  more  than  nine 
days,  such  lease  shall,  at  the  option  of  the  lessor  and  on  notice  to  the 
lessee,  expire  and  terminate.^*^  The  lessor  is  then  entitled  to  resort  to 
the  remedy  of  summary  process  to  recover  possession.-*^ 

§  511.  Florida. — It  furnishes  a  cause  for  the  removal  of  a  tenant 
that  he  holds  over  without  permission  after  default  in  the  payment  of 
rent  pursuant  to  his  lease  and  after  three  days'  notice  in  writing  re- 
quiring the  payment  oi  such  rent  or  the  possession  of  such  premises 
shall  have  been  served  on  him.  The  service  shall  be  by  delivery  of  a 
true  copy,  or,  if  the  tenant  is  absent,  by  leaving  a  copy  at  his  last  and 
usual  place  of  residence.^** 

§  512.  Georgia. — If  the  tenant  fails  to  pay  the  rent  due  at  any 
time,  the  landlord  may  reenter  immediately  and  dispossess  the  ten- 

^"Schnittger    v.    Rose,    139    Cal.  ="  Gen.  St.  1902,  §  4044. 

656,  73  Pac.  449.  ^«  Gen.  St.  1902,  §  1078. 

="  Mills  Ann.  St.  1891,  §  1973,  par.  ="  Rev.  St.  1892,  §  1751. 
4,  5. 


§  513]  TERMINATION  OF  TENANCY.  590 

ant.^*'  In  case  a  tenant  fails  to  pay  rent  as  it  becomes  due,  and  the 
owner  desires  possession  of  the  premises,  such  owner  may  demand  pos- 
session, and,  if  the  tenant  refuses  to  deliver  it,  make  an  oath  of  the 
facts,  which  will  entitle  him  to  a  warrant  directing  an  officer  to  re- 
move the  tenant.  The  tenant  may  arrest  proceedings  by  making  oath 
that  no  rent  is  due  and  giving  bond  with  sureties  to  pay  costs.^*®  When- 
ever the  relation  of  landlord  and  tenant  exists  and  rents  are  due  and 
unpaid,  it  has  been  declared  that  this  statutory  remedy  applies.  A 
question  as  to  the  constitutionality  of  this  act  has  been  resolved  in  the 
affirmative.^*^ 

§  513.  Illinois. — The  landlord  or  his  agent  may,  at  any  time  after 
rent  is  due,  demand  payment  thereof,  and  notify  the  tenant  in  writing 
that  unless  payment  is  made  within  a  specified  time  mentioned  in  such 
notice,  not  less  than  five  days  after  the  service  thereof,  the  lease  will  be 
terminated.  If  the  tenant  shall  not  within  the  time  mentioned  in  such 
notice  pay  the  rent  due,  the  landlord  may  consider  the  lease  ended, 
and  sue  for  the  possession  under  the  statute  in  relation  to  forcible 
entry  and  detainer,  or  maintain  ejectment  without  further  notice  or 
demand.^**  The  common-law  rule  that  to  create  the  forfeiture  for 
non-payment  of  rent  a  demand  for  payment  must  be*  made  upon  the 
premises  or  some  part  thereof  is  by  necessary  implication  dispensed 
with  by  the  Illinois  statutes.  The  former  requirement  for  ten  days' 
notice  has  been  changed,  and  only  five  days'  notice  is  required  if  rent 
is  due  and  unpaid.^*^  Under  the  Illinois  act  of  1865,  where  the  lessor 
demanded  his  rent  and,  on  failing  to  get  it,  gave  the  statutory  ten 
days'  notice  to  quit,  the  tenant  had  ten  days  in  which  to  pay  the  rents 
and  avert  the  forfeiture.  A  tender  of  the  rent  at  the  specified  place 
prior  to  the  giving  of  the  ten  days'  notice  would  have  entitled  the  ten- 
ant to  continue  in  possession.^^*'  According  to  the  statutory  provision, 
payment  or  tender  of  the  rent  in  arrears  during  the  ten  days  after 
notice  is  served  prevented  a  forfeiture  of  the  lease.^^^    On  the  other 

-«Code  1895,  §  3124.  ="  Chapman  v.  Kirby,  49  111.  211. 

="Code  1895,  §§  4813-4815.  Tender.     An  offer  to  pay  by  means 

'^"  Huff  V.  Markham,  70  Ga.  284.  of  a   check   is  a  good  tender  even 

='*Rev.  St.  1903,  ch.  80,  §  8.  though  the  check  is  a  few  dollars 

"'  Rowland  v.  White,  48  111.  App.  too  large,  unless  some  objection  is 

236;  "Woodward  v.  Cone,  73  111.  241;  made   to   the  check  at  the  time  it 

Chadwick    v.    Parker,    44    111.    326;  is  offered.     Mere  inability  to  make 

Burt    v.    French,    70    111.    254;    Wil-  change    does   not   make   the    tender 

liams  V.  Vanderbilt,  145  111.  238,  34  bad.      Gradle    v.    Warner,    140    111. 

N.  E.  476.  123,  29  N.  E.  1118. 

=^  Fisher  v.  Smith,  48  111.  184. 


591  EFPECT  OP   NON-PAYMENT   OF   RENT.  [§§    514-516 

hand,  unqualified  refusal  of  lessee  to  pay  his  rent,  when  followed  by 
notice  to  quit  within  ten  days  and  no  act  of  tenant  signifying  his  will- 
ingness to  pay  the  rent,  amounts  to  a  forfeiture.  ^^^  No  demand  is 
necessary  where  the  lease  is  for  a  definite  term  and  the  end  of  that 
term  has  arrived.  ^^^ 

If  a  lessee  fails  to  pay  rent  and  taxes  as  he  has  covenanted  to  do, 
and  thereby  creates  a  cause  for  forfeiture,  the  lessor  may  forfeit  the 
lease,  and  the  holder  of  a  lien  on  the  leasehold  estate  must  pay  all 
arrears  of  rent  before  he  can  acquire  the  rights  of  the  lessee  under  the 
lease.^^* 

§  514.  Indiana. — If  a  tenant  refuse  or  neglect  to  pay  rent  when 
due,  ten  days'  notice  to  quit  shall  determine  the  lease,  when  not  other- 
wise provided  therein  or  agreed  to  by  the  parties,  unless  such  rent  be 
paid  at  the  expiration  of  such  ten  days.^^^  This  statutory  mode  of  de- 
termining a  lease  does  not  preclude  a  resort  to  a  forfeiture  according 
to  common-law  methods,  and  in  that  case  rent -must  be  demanded  on 
the  premises  just  before  sunset  on  the  day  when  due.^^^  In  the  absence 
of  special  agreement,  rent  under  a  tenancy  from  year  to  year  is  not 
due  till  the  end  of  the  year  ;-^^  but  where  there  is  an  agreement  for  the 
earlier  payment  of  rent,  a  tenancy  from  year  to  year  may  be  ter- 
minated, like  any  other,  by  a  failure  to  pay  rent  after  ten  days' 
notice.^^^  The  only  proper  and  legal  mode  of  serving  a  notice  of  this 
kind  is  by  delivering  the  notice  to  the  tenant,  or,  if  he  cannot  be  found, 
by  delivering  it  to  some  person  of  proper  age  and  discretion  on  the 
premises.  A  demand  made  by  reading  a  paper  to  the  tenant  is  not  a 
demand  made  in  writing.  It  is  but  an  oral  demand.^^^ 

§  515.  Iowa. — A  summary  remedy  for  forcible  entry  and  detainer 
is  allowable  for  the  non-payment  of  rent  when  due.  But  before  action 
can  be  brought  on  this  ground,  three  days'  notice  to  quit  must  be  given 
to  the  defendant  in  writing.-*'*' 

§  516.  Kansas. — If  a  tenant  for  a  period  of  three  months  or  longer 
neglect  to  pay  rent  when  due,  ten  days'  notice  in  writing  to  quit  shall 

="  Fisher  v.  Smith,  48  111.  184.  =='  Indianapolis   Co.   v.   First  Nat. 

=»^Chadwick  v.  Parker,  44  111.  326.  Bank,  134  Ind.   127,  33  N.   E.   679; 

=**Crandall   v.   Sorg,   99    111.   App.  Cowan  v.  Henika,  19  Ind.  App.  40, 

22;  Jones  on  Liens,  §  1273.  48  N.  E.  809. 

="=«  Burns'  Ann.  St.  1901,  §  7092.  ^^Leary  v.  Meier,  78  Ind.  893. 

^^Menkins  v.  Jenkins,  63  Ind.  415;  ==^  Jenkins  v.  Jenkins,  63  Ind.  415. 

Bacon  v.  Western  &c.  Co.,   53   Ind.  ^eo  ^o^g  1897,  §§  4208,  4209. 
229. 


§    517]  TEEMINATIOX    OF    TEXANCT.  592 

determine  the  lease,  unless  such  rent  be  paid  before  the  expiration  of 
said  ten  days.  If  a  tenant  for  a  period  of  less  than  three  months  shall 
neglect  or  refuse  to  pay  rent  when  due,  five  days'  notice  in  writing  to 
quit  shall  determine  the  lease,  unless  such  rent  be  paid  before  the  ex- 
piration of  said  five  days.^^^  If  the  lease  is  in  full  force  when  the 
notice  is  given,  the  tenant  has  ten  full  days  thereafter  in  which  to  pay 
the  rent  and  to  continue  the  lease  in  force.  So,  any  action,  prior  to  the 
expiration  of  such  period,  instituting  suit  to  recover  possession  is  pre- 
mature, and  the  suit  cannot  be  sustained.^^^  Where  a  landlord  al- 
lowed his  tenant  to  remain  in  possession  for  two  years  without  paying 
the  agreed  rent  before  serving  a  notice  to  quit  on  him,  it  was  held  that 
the  action  of  unlawful  detainer  was  not  barred  by  such  possession.-^^ 

§'  517.  Massachusetts. — Upon  the  refusal  or  neglect  to  pay  the 
rent  due  according  to  the  terms  of  a  written  lease,  fourteen  days' 
notice  to  quit,  given  in  writing  by  the  landlord  to  the  tenant,  shall  be 
sufficient  to  determine  the  lease,  unless  the  tenant,  four  days,  at  least, 
before  the  return  day  of  the  writ,  in  an  action  brought  by  the  landlord 
to  recover  possession  of  the  premises,  pays  or  tenders  to  the  landlord 
or  his  attorney  all  rent  then  due,  with  interest  thereon,  and  with  all 
costs  of  suit.  In  all  cases  of  neglect  or  refusal  to  pay  the  rent  due  from 
a  tenant  at  will,  fourteen  days'  notice  to  quit  shall  be  sufficient  to  de- 
termine the  tenancy.^®*  The  object  of  these  statutes  is  to  give  to  a 
landlord  the  benefit  of  the  summary  process  for  the  recovery  of  pos- 
session of  his  estate  if  his  tenant  under  a  written  lease  neglects  to  pay 
the  rent.  They  do  not  provide  that  the  tenant's  estate  shall  be  abso- 
lutely forfeited,  either  by  a  failure  to  pay  rent  or  by  the  lapse  of  four- 
teen days  after  a  written  notice  to  quit  is  given  him.  It  is  certain  that 
the  forfeiture  does  not  become  absolute  until  the  fourteen  days  have 
run  out.  Until  then  the  tenant  has  the  right  to  pay  or  tender  the  rent 
and  reinstate  himself  in  his  rights.  The  process  cannot  be  brought 
until  fourteen  days'  notice  to  quit  has  been  given.  Until  then,  the 
forfeiture  is  at  most  conditional,  and  may  be  purged  and  saved  by  the 
payment  or  tender  of  the  rent  due.  It  cannot  be  necessary  that  the 
tenant  should  wait  until  such  process  is  commenced  before  making  his 
tender.  The  words  of  the  statute,  unless  the  tenant  "four  days  at  least 
before  the  return  day  of  the  writ"  pays  or  tenders  his  rent,  imply  that 
the  tender  may  be  made  after  notice  to  quit.   According  to  the  spirit 

="Gen.  St.  1899,  §§  3722,  3723.  ^''^Moran  v.   Moran,   54   Kan.   270, 

^-  Douglass    V.    Parker,    32    Kan.     38  Pac.  268. 
593,  5  Pac.  178.  ^Rev.  Laws  1902,  ch.  129,  §§  U, 

12. 


593  EFFECT    OF    NON-PAYMENT    OF    RENT.         [§§    518,    519 

and  the  letter  of  the  statute,  a  tender  by  a  tenant  made  within  fourteen 
days  after  a  notice  to  quit  is  given  him  will  save  a  forfeiture  of  his 
estate. 

In  order  to  save  the  forfeiture,  it  is  not  necessary  for  the  tenant  to 
tender  the  unpaid  taxes,  although  the  lessor  has  paid  them  to  prevent 
the  sale  of  the  estate  for  taxes.  By  the  provisions  of  the  statute,  a  for- 
feiture is  saved  if  the  tenant  pays  or  tenders  the  rent  due,  with  inter- 
est thereon,  and  all  costs  of  suit.  The  parties  did  not  contemplate  that 
the  taxes  were  to  be  a  part  of  the  rent.  The  covenant  to  pay  taxes  is  a 
separate,  independent  covenant,  and  is  put  upon  the  same  footing  as 
the  covenant  to  repair. ^^^^ 

A  lessee  at  will  is  bound  to  pay  his  rent  at  the  rent  day  without  de- 
mand; his  failure  to  do  so  is  a  neglect  to  pay  the  rent  due,  and  this 
gives  the  lessor  a  right  to  terminate  the  tenancy  at  will  by  fourteen 
days'  notice,  without  any  demand  for  rent  on  the  day.  The  receipt  of 
the  money  due  for  rent  after  such  notice  given  does  not  necessarily 
operate  as  a  waiver  of  that  right  if  the  landlord  at  the  time  of  receiv- 
ing such  rent  gives  notice  that  he  does  not  thereby  intend  to  waive  his 
right  to  terminate  the  lease  or  revoke  his  notice.^*'^ 

§  518.  Michigan. — In  all  cases  of  neglect  or  refusal  to  pay  rent  on 
a  lease  at  will  or  otherwise,  seven  days'  notice  to  quit,  given  in  writing 
by  the  landlord  to  the  tenant,  shall  be  sufficient  to  determine  the 
lease.^^^  After  a  tenancy  has  been  terminated  by  the  giving  of  notice, 
and  the  landlord  has  obtained  peaceable  possession  of  the  premises,  he 
is  not  liable  to  an  action  for  damages  unless  more  force  is  used  than 
is  necessary  to  repel  the  effort  of  the  tenant  to  regain  possession. 
Where  there  has  not  been  a  forcible  entry,  the  statute  does  not  forbid 
retaining  possession  by  force,  unless  the  possession  is  unlawful  and 
against  the  rights  of  the  person  kept  out.^"^ 

§  519.  Minnesota. — Wliere  a  landlord  has  a  subsisting  right  to  re- 
enter for  non-payment  of  rent,  an  action  brought  to  recover  the  posses- 
sion is  equivalent  to  a  demand  of  the  rent  and  a  reentry  into  possession. 
For  six  months  after  the  deciding  of  such  action  the  lessee  has  the 
privilege  of  redeeming  the  lease  from  the  forfeiture  by  performing  the 
covenants  or  paying  the  rent  with  interest. ^''^  Where  any  person  holds 

^=  Hodgkins  v.  Price,  137  Mass.  13.  =^'*  Smith  v.  Detroit  &c.  Asso.,  115 

^Kimball    v.    Rowland,    6    Gray  Mich.  340,  73  N.  W.  395. 

(Mass.)  224.  ^°  Statutes  1894,  §  5865. 
^'Comp.  Laws  1897,  §  9257. 

Jones  L.  &  T.— 38 


§    520]  TEEMIifATION   OF  TENANCY.  594 

lands  contrary  to  the  conditions  or  covenants  in  the  lease,  or  after  any 
rent  becomes  due  under  the  terms  of  the  agreement,  the  landlord  may 
make  complaint  to  a  justice  of  the  peace,  as  in  the  case  of  a  forcible 
detainer.^^"  Where  the  action  is  for  restitution  on  the  ground  of  non- 
payment of  rent,  no  notice  to  quit  is  necessary.^'^   The  statute  gives 
the  right  to  restitution  against  a  tenant  holding  over  after  default  in 
the  payment  of  rent,  whether  the  lease  contains  a  reentry  clause  or  not. 
It  is  immaterial  whether  the  lease  gives  a  right  of  reentry  or  not  for 
the  non-payment  of  rent  when  the  action  is  not  brought  under  the 
provisions  of  §  5865,  but  under  §  6118,-  which  gives  the  action  for 
restitution  in  such  cases  independent  of  any  contract  for  reentry."^ 
The  section  making  the  bringing  of  an  action  equivalent  to  demand 
and  entry  applies  only  where  the  right  of  entry  for  breach  of  condi- 
tion is  expressly  reserved.    The  other  section  has  gone  further  than 
the  common  law,  and  has  given  the  landlord  the  right,  in  any  case 
where  the  tenant  holds  over  "after  any  rent  becomes  due,  according 
to  the  terms  of  such  lease  or  agreement,"  to  bring  an  action  to  recover 
possession  of  the  premises.   But  while  extending  this  remedy  to  the 
landlord,  it  nowhere  provides  that  the  commencement  of  such  an 
action  shall  be  equivalent  to  an  entry  or  work  a  forfeiture  of  the  lease. 
On  the  contrary,  the  provisions  of  the  statute  are  wholly  inconsistent 
with  any  such  theory,  and  all  point  to  the  manifest  legislative  intent 
that,  for  the  unlawful  withholding  of  the  possession  during  the  pend- 
ency of  the  action,  the  lessor's  sole  remedy  is  the  rental  value  of  the 
premises.2"  If  the  tenant  holds  over  after  the  rent  becomes  due  by  the 
terms  of  the  lease,  the  right  of  action  is  complete.   Nothing  more  and 
no  other  thing  is  required  by  the  statute.^'^*  Therefore,  in  proceedings- 
under  this  statute  by  a  landlord  against  his  tenant  to  recover  possession 
of  premises  for  non-payment  of  rent,  no  previous  demand  of  the  rent 
is  required.^'^^ 

§520.  Mississippi. — A  tenant  at  will  or  at  sufferance  or  for  a 
term  of  years  may  be  removed  from  the  premises  by  any  justice  of  the 
peace  after  default  in  the  payment  of  rent  pursuant  to  the  agreement 
under  which  such  premises  are  held,  and  when  satisfaction  of  the  rent 

^"Statutes  1894,  §  6118.  "' Woodcock  v.  Carlson,  41  Minn. 

271  seeger  v.  Smith,  74  Minn.  279,  542,  43  N.  W.  479. 

77  N.  W.  3;   Radley  v.  O'Leary,  36  ="  Caley  v.  Rogers,  72  Minn.  100, 

Minn.  173,  30  N.  W.  457.  75  N.  W.  114. 

="=  Seeger  v.  Smith,  74  Minn.  279,  "'  Spooner  v.  French,  22  Minn.  37. 
77  N.  W.  3;  Suchaneck  v.  Smith,  45 
Minn.  26,  47  N.  W.  397. 


595  EFFECT   OF    NON-PATMEXT    OF    RENT.         [§§    521,    523 

cannot  be  obtained  by  distress  of  goods,  and  three  days'  notice  in  writ- 
ing, requiring  the  payment  of  the  rent  or  the  possession  of  the  prem- 
ises, has  been,  served  on  the  tenant.^^^ 

§•  521.  Missouri. — Whenever  a  half-year's  rent  or  more  is  in  arrear 
from  a  tenant,  the  landlord,  if  he  has  a  subsisting  right  by  law  to  re- 
enter for  the  non-payment  of  such  rent,  may  bring  an  action  to  recover 
the  possession  of  the  demised  premises.  The  service  of  the  summons 
in  such  action  shall  be  deemed  and  stand  instead  of  a  demand  of  the 
rent  in  arrear  and  of  a  reentry  on  the  demised  premises.^"  If  default 
is  made  in  the  payment  of  rent  at  the  times  agreed  upon  by  the  parties, 
it  is  lawful  for  the  landlord  to  dispossess  the  tenant  and  all  sub-tenants 
in  the  form  of  action  provided  by  law.^^®  Any  demand  of  rent  shall 
be  good  when  made  at  any  time  after  the  rent  demanded  is  due  accord- 
ing to  the  terms  of  the  agreement,  whether  by  written  lease  or  other- 
wise.^^^  Furthennore,  according  to  Missouri  law,  a  lessee  may  pay  his 
rent  and  thus  avoid  a  forfeiture  at  any  time  before  the  lessor  has  taken 
the  proper  proceedings  to  declare  the  lease  void,  even  though  such  pay- 
ment is  subsequent  to  the  period  when  non-payment  of  rent  was  to 
have  forfeited  the  lease. ^^^    • 

§522.  Nebraska.— Section  [6544]  ^^i  1020  of  the  civil  code  pro- 
vides that  proceedings  under  the  article  for  the  forcible  detention  of 
real  estate  may  be  had  in  all  cases  against  tenants  holding  over  their 
terms.  Section  [6545]  1021  provides  in  effect  that  the  failure  to  pay 
rent  shall  terminate  a  tenancy,  and  that  a  tenant  shall  be  deemed  to 
be  holding  over  his  term  whenever  he  has  failed,  neglected  or  refused 
to  pay  the  rent  or  any  part  thereof  when  the  same  was  due,  etc.  By 
section  [6546]  1022  it  is  provided  that  "It  shall  be  the  duty  of  the 
party  desiring  to  commence  an  action  under  this  chapter  to  notify  the 
adverse  party  to  leave  the  premises  for  the  possession  of  which  the  ac- 
tion is  about  to  be  brought,  which  notice  shall  be  served  at  least  three 
days  before  commencing  the  action,''  etc.  No  other  notice  is  required. 
The  intention  of  the  legislature  was  that  the  fact  of  failure  or  refusal 
to  pay  rent  should  bring  the  tenant  within  the  provisions  of  section 
1020,  and  that  in  that  case  but  one  notice  was  necessary — ^the  notice 
to  quit.  The  question  as  to  the  non-payment  of  rent  is  one  of  fact  for 

^'^  Ann.  Code  1892,  §  2547.  '*"  Lewis  v.  City  of  St.  Louis,  69 

^Rev.  St.  1899,  §§  4116,  4118.  Mo.  595. 

"*Rev.  St.  1899,  §  4130.  ==-'' Numerals  in  brackets  refer  to 

'^Rev.  St.  1899,  §  4136.  the   section  numbers   in   Comp.   St. 

1899. 


§§  523,  524]       TEEMINATION  OF  TEXAXCT.  596 

the  determination  of  the  jury.^^^  It  is  quite  immaterial  that  the  lease 
contains  no  stipulation  of  forfeiture  or  right  of  the  landlord  to  reenter 
in  case  of  non-pajonent  of  the  rent  reserved.  Contracts  of  lease  must 
be  construed  with  reference  to  the  provisions  of  the  statute.^^^ 

§  523.  New  Hampshire. — If  a  tenant  at  will  neglects  or  refuses  to 
pay  the  rent  due  and  in  arrear,  upon  demand,  seven  days'  notice  to 
quit  shall  be  sufficient  to  terminate  the  tenancy.  If  a  lessee  violates 
the  condition  of  a  written  lease,  notice  to  quit  at  the  end  of  seven  days 
shall  be  equivalent  to  an  entry  for  condition  broken.^**  This  seven 
days'  notice  to  quit  need  not  assign  a  reason  for  terminating  the  rela- 
tion of  landlord  and  tenant.  The  statute,  in  defining  the  cases  in  which 
seven  days'  notice  to  quit  shall  authorize  the  landlord  to  proceed  in  the 
manner  which  it  points  out,  does  not  require  that  the  notice  should 
indicate  to  the  tenant  upon  which  particular  one  the  landlord  proposes 
to  found  his  claim  to  possession.-^^  However,  to  take  advantage  of  the 
seven  days'  notice  to  quit  provided  for  by  statute  in  case  of  a  right  of 
reentry  for  breach  of  a  covenant  to  pay  rent,  a  demand  for  rent  must 
be  made,  and  it  must  be  for  the  precise  amount  due.  The  common  law 
on  the  subject  of  tenancies  has  been  adopted  in  New  Hampshire,  ex- 
cept as  it  has  been  modified  by  statute.  Under  it  the  demand  must  be 
of  the  precise  amount  of  rent  due,  and  this  requirement  has  not  been 
modified  or  changed  by  the  statute. ^^^ 

§  524.  New  Jersey. — Any  tenant  may  be  removed  by  a  Justice  of 
the  peace  in  the  manner  elsewhere  prescribed  by  statute,  in  case  he 
holds  over  after  any  default  in  the  payment  of  rent  pursuant  to  the 
agreement  under  which  he  holds,  when  satisfaction  for  such  rent  can- 
not be  obtained  by  distress,  and  a  demand  of  such  rent  shall  have  been 
made,  by  three  days'  notice  in  writing,  requiring  the  payment  of  such 
rent  or  the  possession  of  the  premises.^ ^^  Any  one  of  a  number  of 
joint  tenants  or  tenants  in  common,  named  as  landlords  in  a  lease,  is 
authorized  to  make  demand  in  writing  for  the  payment  of  rent,  and 
sign  and  give  the  three  days'  notice  required  by  the  statute.-®^    The 

^''^  Hendrickson  v.  Beeson,  21  Neb.  =*«  Nowell  v.  Wentworth,  58  N.  H. 

61;  Pollock  v.  Whipple,  33  Neb.  752,  319;    Jones   v.   Reed,   15   N.    H.    68; 

51  N.  W.  130.  McQuesten  v.  Morgan,  34  N.  H.  400; 

''^  Pollock  v.  Whipple,  33  Neb.  752,  Coon  v.  Brickett,  2  N.  H.  163. 

51  N.  W.  130.  ="Gen.  St.  1895,  p.  1922,  §  30. 

=**Pub.  St.  ch.  246,  §§  3,  4.  ='*^  Mullone   v.   Klein,   55   N.   J.   L. 

^  Russell  V.  Allard,  18  N.  H.  222.  479,  27  Atl.  902. 


597  EFFECT    OF    XOX-PAYMEXT    OF    EEXT.  [§    525 

termination  of  a  lease  by  a  landlord's  election  on  the  breach  of  a  condi- 
tion is  not  an  expiration  of  the  term  under  this  section.^®" 

§  525.  New  York. — Wlien  six  months  rent  or  more  is  in  arrear 
upon  a  lease  of  real  property,  and  the  lessor  has  a  subsisting  right  by 
law  to  reenter  for  the  failure  to  pay  the  rent,  he  may  maintain  an  ac- 
tion to  recover  the  property  granted  or  demised,  without  any  demand 
of  the  rent  in  arrear,  or  reentry  on  the  property.^^*^  Where  a  right  of 
reentry  is  reserved  to  a  lessor  in  default  of  a  sufficiency  of  goods  and 
chattels  whereon  to  distrain  for  the  rent  due,  the  reentry  may  be  made, 
or  an  action  to  recover  the  property  demised  may  be  maintained,  by 
the  lessor  at  any  time  after  default  in  the  payment  of  the  rent,  pro- 
vided the  plaintiff,  at  least  fifteen  days  before  the  action  is  commenced, 
serves  a  written  notice  of  his  intention  to  reenter.^^^  The  rights  of  a 
landlord  to  recover  possession  under  the  two  sections  of  the  code  thus 
briefly  summarized  overlap,  the  right  to  avail  of  one  not  excluding 
a  resort  to  the  other.  Where  a  right  of  reentry  is  reserved  to  a  lessor 
in  default  of  a  sufficiency  of  goods  and  chattels  whereon  to  distrain 
for  the  satisfaction  of  any  rent  due,  such  entry  may  be  made  at  any 
time  after  default  in  the  payment  of  such  rent,  provided  fifteen  days' 
notice  be  given.  Obviously,  this  does  not  describe  the  cases  in  which 
the  right  of  reentry  is  reserved  and  given  on  default  of  payment  with- 
out any  regard  to  the  question  whether  there  are  goods  and  chattels  on 
the  premises.^^-  It  is  evident  that  unless  a  lease  provides  a  right 
of  reentry  for  some  reason  other  than  a  default  of  sufficient  distress, 
ejectment  cannot  be  maintained  until. proper  notice  has  been  served. 
But  it  may  appear  upon  an  examination  of  a  lease  that  the  right  to  re- 
enter does  not  depend  solely  upon  this  ground,  but  that  if  any  of  the 
covenants  or  conditions  in  the  lease  are  broken,  then  a  right  of  reentry 
is  conferred  upon  the  lessor  and  his  successor  in  title.  In  other  words, 
if  a  tenant  covenants  to  pay  the  rent  and  agrees  that  for  breach  of  this 
covenant  the  landlord  may  reenter,  the  stipulation  for  a  right  to  re- 
enter on  this  ground  is  entirely  independent  of  a  stipulation  giving 
that  right  in  case  of  a  failure  of  distress.  The  code  provisions  take  ef- 
fect in  the  alternative,  so  that  if  six  months'  rent  was  in  arrear  the 
landlord  would  have  a  subsisting  right  by  law  to  reenter,  which  would 
authorize  a  recovery  of  the  property,  under  the  section  first  stated, 
without  any  demand. ^^^ 

-*°  Wakeman  v.   Johnson,   3   N.   J.  152 ;  Van  Rensselaer  v.  Dennison,  35 

L.  J.  84.  N.  Y.   393;    Cruger  v.   McLaury,   41 

^^"Code  Civ.  Pro.,  §  1504.  N.  Y.  219. 

="Code  Civ.  Pro.,  §  1505.  ='3  Martin  v.  Rector,  118  N.  Y.  476, 

="2  Hosford  V.  Ballard,  39  N.  Y.  147,  23  N.  E.  893. 


§§    526-530]  TERMIXATIOX    OF   TEXANCY.  598 

§  626.  North  Carolina. — Whenever  any  half-year's  rent  or  more 
shall  be  in  arrear  and  the  landlord  has  a  subsisting  right  of  reentry  for 
the  non-payment  of  such  rent,  he  may  bring  an  action  for  the  recovery 
of  the  demised  premises,  and  the  service  of  the  summons  therein  shall 
be  deemed  equivalent  to  a  demand  of  the  rent  in  arrear  and  a  reentry 
upon  the  demised  premises.^^*  A  tenant  may  be  removed  from  the 
premises  occupied  by  him  in  the  form  of  action  prescribed  by  statute 
in  case  he  has  done  or  omitted  any  act  by  which,  according  to  the  stipu- 
lations of  the  lease,  his  estate  has  ceased.^^^  If  the  tenant  before  judg- 
ment shall  pay  or  tender  the  rent  due  and  the  costs  of  the  action,  all 
further  proceeding  in  such  action  shall  cease.^®^ 

The  notice  by  a  lessor  to  terminate  a  lease  for  non-payment  of  rent, 
and  of  his  intention  to  take  possession  within  thirty  days,  is  not  an 
offer  which  may  be  accepted  by  the  tenant  and  thus  made  irrevocable, 
but  the  lessor  may  withdraw  it  and  sue  for  the  rent.^^^ 

§  527.  North  Dakota. — Whenever  the  right  of  reentry  is  given  to  a 
grantor  or  lessor  in  any  grant  or  lease,  or  otherwise,  such  reentry  may 
be  made  at  any  time  after  the  right  has  accrued,  upon  three  days' 
previous  written  notice  of  intention  to  reenter,  served  on  the  tenant 
or  some  person  of  discretion  residing  on  the  premises,  or,  if  no  such 
person  can  be  found,  posted  on  the  premises.  An  action  for  the  pos- 
session of  real  property  leased  with  a  right  of  reentry  may  be  main- 
tained at  any  time  after  the  right  to  reenter  has  accrued,  without  any 
notice.  ^^^ 

§  528.  Oregon. — Where  a  landlord  has  a  subsisting  right  to  re- 
enter for  a  tenant's  failure  to  pay  rent,  he  may  bring  an  action  to  re- 
cover possession  of  the  property  and  such  action  is  equivalent  to  a  de- 
mand of  the  rent,  and  a  reentry  upon  the  property.  Until  judgment 
the  tenant  can  avoid  the  forfeiture  by  paying  rent  with  interest  and 
costs  and  performing  other  agreements. ^^^ 

§  529.  Oklahoma. — In  this  territory  the  statutory  provisions  are 
similar  to  those  of  Kansas. 

§  530.  Pennsylvania. — Por  a  lessee's  refusal  to  pay  rent  accord- 
ing to  the  terms  of  the  contract  and  in  the  absence  of  a  sufficient  dis- 

i^^Code  1883,  §  1745.  house  Co.  v.  Duke,  116  N.  Car.  202, 

»=  Code  1883,  §  1766.  21  S.  E.  178. 

»«Code  1883,  §  1773.  ^»Code  1895,  §§  3347,  3350. 

**^Goldsboro    Storage    and    Ware-        ^sa^jm    Codes  and  Statutes  1902, 

§  338. 


I 


599  EFFECT    OF    NON-PAYMENT    OF    RENT.  [§§    531-533 

tress  upon  the  premises,  the  lessor  may  notify  the  lessee  to  quit  after 
fifteen  days  in  summer,  or  after  thirty  days  in  winter.  For  failure 
to  leave  at  the  end  of  the  period  specified,  complaint  may  be  made  to 
an  alderman  or  justice.  Prior  to  the  execution  of  a  writ  of  possession, 
the  tenant  may  redeem  by  paying  the  rent  in  arrear  and  costs.^*'*'  The 
statutory  notice  to  quit  must  be  accompanied  by  a  demand  for  the 
amount  of  the  rent  claimed  and  must  be  served  on  a  party  residing  on 
the  premises.^"^  The  justice,  to  whom  complaint  is  made,  can  only 
acquire  jurisdiction  by  waiting  the  statutory  period  for  notice,  and 
cannot  acquire  it  under  a  clause  in  the  lease  substituting  five  days' 
notice  for  that  required  by  the  statute.^"^ 

§'  531.  Rhode  Island. — If  in  any  case  of  letting  whether  by  writing 
or  parol,  the  stipulated  rent,  or  any  part  of  the  same,  be  due  and  in 
arrear  for  fifteen  days,  whether  demanded  or  not,  the  landlord  or  re- 
versioner may  reenter  and  repossess  himself  of  the  lands,  buildings  or 
parts  of  buildings  let,  or  recover  possession  of  the  same  from  the  ten- 
ant, or  any  person  holding  under  him  discharged  from  the  lease.^''^ 
When  the  landlord  avails  himself  of  this  provision  in  the  statute  to 
get  rid  of  a  defaulting  tenant,  no  notice  to  quit  is  necessary  even 
though  the  holding  be  a  tenancy  at  sufferance  which  would  ordinarily 
require  notice  to  quit  equal  to  half  the  length  of  periods  on  which 
rent  is  payable.^"* 

§  532.  South  Carolina. — "V\liere  a  tenant  in  arrears  for  a  full  year 
shall  desert  and  leave  uncultivated  the  demised  premises,  the  land- 
lord may  apply  to  magistrates  to  post  a  notice  in  writing  on  the  prem- 
ises, stating  what  day  (at  a  distance  of  fourteen  days  at  least)  they 
will  return  to  make  a  second  view  thereof.  Unless  some  person  ap- 
pears at  that  day  in  behalf  of  the  tenant  and  pays  the  rent  in  arrear, 
the  magistrates  may  put  the  landlord  in  possession  and  the  lease  will 
be  thenceforth  void.^"^ 

§  533.  Vermont. — In  actions  of  ejectment  for  non-payment  of  rent, 
the  plaintiff  shall  not  be  required  to  prove  a  demand  of  the  rent  in 
arrear,  or  a  stipulation  for  reentry  on  non-payment  of  rent,  or  a  re- 

^^o Brightly's  Purd.  Dig.,  p.  1167,  (Pa.)  304;  Hopkins  v.  McClelland, 
§  25.  8  Phila.  (Pa.)  302. 

"^  Clark  V.  Everly,  8  W.  &  S.  (Pa.)  =»' Gen.  Laws  1896,  ch.  269,  §  7. 

226.  =°*  Providence    Co.    Sav.    Bank    v. 

^"^  McCloud    V.    Jaggers,    3    Phila.     Phalen,  12  R.  I.  495. 

'"^  Civil  Code  1902,  §§  2418,  2419. 


g'  534]  tee:mixatiox  of  texaxcy.  600 

entry  on  the  premises;  but  shall  recover  judgment  as  if  the  rent  in 
arrear  had  been  demanded  and  reentry  made.  Until  final  Judgment 
the  defendant  in  such  action  may  pay  into  court  the  rent  in  arrear 
with  interest  and  the  costs  of  suit  and  have  the  action  dismissed.^"^ 
An  action  would  lie  under  this  statute  without  any  demand  for  rent 
although  the  lease  in  terms  gives  the  right  of  entry  only  after  demand 
of  the  rent  and  default  in  payment  thereof  for  twenty-eight  days.^" 
But  the  right  of  redemption  allowed  by  the  statute  until  a  final  judg- 
ment in  the  suit  cannot  be  cut  off  by  a  conveyance  in  fee  by  the  lessor 
after  the  tenant's  default.  At  least  this  cannot  be  done  unless  the 
lessor  complies  with  the  common-law  requirements  as  to  demand  and 
reentry.^"® 

§  534.  Virginia. — A  provision  in  a  lease  that  a  lessor  may  re- 
enter for  non-payment  of  rent  or  for  breach  of  covenants  shall  have 
the  effect  of  an  agreement  for  a  general  right  of  reentry  for  breach  of 
any  covenants  in  the  lease,  authorizing  the  lessor  to  repossess  and 
enjoy  as  of  his  former  estate.^*'''  This  statute  was  not  designed  to 
alter  the  rules  of  the  common  law  in  respect  to  the  forfeiture  of  es- 
tates for  non-payment  of  rent,  but  to  authorize  a  concise  and  abbrevi- 
ated form  of  leases  and  other  conveyances. ^^'^  A  person  having  a 
.  right  of  reentry  for  non-pa3'ment  of  rent  or  breach  of  other  condition, 
may  serve  a  declaration  in  ejectment  on  the  tenant  in  possession  which 
service  shall  be  in  lieu  of  a  demand  or  reentry.  On  proof  of  the  right 
to  reenter  and  that  there  was  no  sufficient  distress  upon  the  premises, 
he  shall  recover  judgment  and  have  execution  for  such  lands.^^^  By 
this  statute  the  common-law  formalities  of  a  demand  are  dispensed 
with,  by  providing  that  an  action  may  be  brought  as  a  substitute  for 
such  demand  in  cases  where  sufficient  distress  can  be  found  upon  the 
premises.  This  statute  applies,  however,  only  to  the  action  of  eject- 
ment, service  of  a  declaration  in  which  it  provides  shall  be  in  lieu  of 
a  demand  and  reentry,  and  then  further  provides  that  upon  proof  to 
the  court,  by  affidavit  in  case  of  judgment  by  default,  or  upon  proof 

'"« Statutes  1894,  §  1499.  to  pay  rent,  even  though  at  the  time 

=»' Jamaica   v.    Hart,    52    Vt.    549;  of   the   notice   to   lessee  to   quit   he 

Maidstone  v.  Stevens,  7  Vt.  487.  had  paid  all  the  rent  and  was  un- 

=°«Willard  v.  Benton,  57  Vt.  286.  der  no  obligation  to  do  so.    Patchin 

Notice  to  a  lessee  to  quit  premises  v.  Dickerman,  31  Vt.  666. 

for  non-payment  of  rent,  acted  upon  ^"'  Code  1904,  §  2457. 

by  the  lessee  by  quitting  and  by  the  ''"  Johnston    v.    Hargrove,    81   Va. 

lessor  by  taking  possession   consti-  118. 

tutes  a  surrender  which  will  release  '"  Code  1904,  §  2796. 

the  lessee  from  all  further  liability 


601  EFFECT    OF    XOX-PATMEXT    OF    RENT.         [§§    535,    536 

on  the  trial  that  the  rent  claimed  was  due,  and  no  sufficient  distress 
■was  upon  the  premises  .  .  .  and  that  the  plaintifE  had  power 
thereupon  to  reenter,  he  shall  recover  judgment.  When  the  proceed- 
ings is  not  an  action  of  ejectment,  this  statute  may  be  laid  out  of 
view.  In  that  case,  if  it  appears  that  no  demand  for  the  rent  has 
been  made  by  the  plaintiff,  the  unavoidable  conclusion  is  that  such  an 
action  is  not  maintainable  on  the  principles  of  the  common  law, 
which  requires  a  demand  for  rent  to  work  a  forfeiture.^^^  For  twelve 
months  after  execution  executed,  the  tenant  has  a  right  to  redeem 
from  the  forfeiture  by  payment  of  the  rent  in  arrear  with  interest 
and  costs.^^^ 

§  535.  West  Virginia. — If  any  tenant  leaves  his  rent  in  arrear  and 
unpaid  and  deserts  the  premises  without  sufficient  goods  subject  to 
distress  to  satisfy  the  rent,  the  lessor  may  post  a  notice  requiring  the 
tenant  to  pay  the  rent  within  one  month.  If  rent  is  not  paid  within 
that  time,  the  lessor  becomes  entitled  to  possession  of  the  premises, 
and  may  enter  thereon.^^*  Any  person  having  a  right  of  reentry  by 
reason  of  rent  being  in  arrear  or  by  reason  of  the  breach  of  any  cove- 
nant or  condition,  may  serve  a  declaration  in  ejectment  on  the  tenant 
which  service  shall  be  in  lieu  of  a  demand  and  reentry.  On  proof 
that  the  rent  claimed  was  due,  and  no  sufficient  distress  was  upon  the 
premises,  or  that  the  covenant  or  condition  was  broken  before  the 
service  of  the  declaration  and  that  the  plaintiff  had  power  thereupon 
to  reenter,  he  shall  recover  judgment,  and  have  execution  for  such 
lands.^^^  This  section  has  been  construed  to  mean  that  in  an  action 
of  ejectment  to  recover  premises  by  reason  of  forfeiture  of  a  lease, 
no  reentry  is  necessary;  but  that  in  an  action  of  unlawful  entry  and 
detainer  a  different  rule  prevails  for  the  reason  that  that  action  is  not 
covered  by  the  statute.  At  common  law  it  is  necessary  for  a  party 
to  enter  upon  an  estate  in  order  to  work  a  forfeiture.  It  cannot  be 
effected  by  bringing  an  action  for  the  recovery  of  possession.^^*^  For 
a  year  after  execution  executed  in  the  ejectment  suit,  the  tenant  may 
redeem  by  paying  all  arrears  of  rent  with  interest  and  the  costs  of 
suit."^ 

§  536.  Wisconsin. — In  all  cases  of  neglect  or  refusal  to  pay  the 
rent  due  on  a  lease  at  will  fourteen  days'  notice  to  remove,  given  by 

*"  Johnston   v.    Hargrove,    81    Va.  =>=  Code  1899,  ch.  93,  §  16. 

118;  citing  Doe  v.  Wandlass,  7  Term  =>'"  Bowyer  v.  Seymour,  13  W.  Va. 

R.  113,  117.  12,  25;  Martin  v.  Ohio  River  R.  Co., 

"'Code  1904,  §  2797.  37  W.  Va.  349,  16  S.  E.  589. 

^"Code  1899,  ch.  93,  §  6.  «"Code  1899,  ch.  93,  §  17. 


§§537,    538]  TEEMINATIOX    OF    TENANCY.  603 

the  landlord  shall  be  sufficient  to  determine  the  lease.  At  the  expira- 
tion of  the  time  required  after  the  service  of  such  a  notice,  the  land- 
lord may  reenter,  or  maintain  an  action  for  the  recovery  of  posses- 
sion.^^^ 

§  537.  Wyoming. — After  a  tenant's  failure  to  pay  rent  for  three 
days  after  it  becomes  due,  a  landlord  is  entitled  to  commence  proceed- 
ings under  the  Forcible  Entry  and  Detainer  Act.  The  landlord  must 
notify  the  tenant  to  leave  the  premises,  for  the  possession  of  which  the 
action  is  about  to  be  brought,  and  this  notice  must  be  served  at  least 
three  days  before  the  bringing  of  the  action.  The  pendency  of  this 
action  is  not  a  bar  to  an  action  of  ejectment.^ ^^ 

IV.    Surrender. 

§  538.  "A  surrender  is  a  yielding  up  of  an  estate  for  life  or 
years,  to  him  who  hath  the  immediate  estate  in  reversion  or  re- 
mainder, wherein  the  estate  for  life  or  years,  may  drown  by  mutual 
agreement."^^°  Even  according  to  the  old  technical  law  any  form  of 
words  whereby  the  intent  and  agreement  of  the  parties  appeared,  was 
sufficient  to  work  a  surrender;  and  the  law  directed  the  operation  of 
the  words  accordingly  without  the  precise  or  formal  mention  of  the 
word  surrender  in  the  conveyance.  Before  the  statute  of  frauds,  a 
term  for  years,  whether  by  deed  or  parol,  might  have  been  surren- 
dered entirely  by  parol.^-^  But  now  by  the  statute  of  frauds  and  per- 
juries, it  is  provided  that  no  leases,  estates  or  interests,  either  of  free- 
hold or  terms  for  years  shall  be  surrendered,  unless  it  be  by  deed,  or 
note  in  writing  signed  by  the  party  who  makes  such  surrender  or 
some  other  lawfully  authorized  thereunto,  or  by  an  act  and  operation 
of  law;  so  that  surrenders  in  law,  or  implied  surrenders,  remain  as 
they  did  at  common  law,  if  the  lease  which  is  to  draw  on  such  sur- 
render, be  in  writing  pursuant  to  that  statute.^-^  Therefore  a  mere 
agreement  to  surrender  a  lease  is  inoperative  unless  by  instrument  in 

5i»  Statutes  1898,  §§  2183,  2184.  '=^  Gwyn  v.  Wellborn,  1  Dev.  &  B. 

'"Rev,    St.    1899,    §§    4486,    4487,  (N.  Car.)   313,  318.     In  1815  North 

4499.  Carolina  had  no  statute  of  frauds 

'-"  Bacon's  Abr.  Leases  and  Terms  and   hence  such  a  parol  surrender 

for    Years,    S;    7    Inst.    337b;    Wei-  was  good  at  that  time. 

come  V.  Hess,  90  Cal.  507,  27  Pac.  ^--  Bacon's    Abr.,    tit.    Leases    and 

369;  Dayton  v.  Craik,  26  Minn.  133,  Terms    for    Years,    S;    Welcome    v. 

1  N.  W.  813;   Gwyn  v.  Wellborn,  1  Hess,  90  Cal.  507,  27  Pac.  369;  Kittle 

Dev.  &  B.   (N.  Car.)   313.  v.  St.  John,  7  Neb.  73. 


603  SURRENDER.  [§    538 

writing  based  on  sufficient  consideration  or  accompanied  by  the  act 
of  transferring  possession.^^s  ^  license  to  surrender  where  there  is  no 
consideration  given  for  such  permission  may  be  revoked  by  the  land- 
lord at  any  time  before  it  is  abted  upon.^-*  However,  a  written  agree- 
ment by  a  tenant  to  surrender  in  consideration  of  the  payment  of  a 
certain  sum  is  valid  and  after  the  tenant  has  performed  his  part  of  the 
agreement  he  can  compel  the  payment  of  the  money .^^^  Express  sur- 
renders, although  executory,  are  of  course  valid  when  witnessed  by  an 
instrument  which  complies  with  the  requirements  of  the  statute  of 
frauds.  Thus  in  one  case  a  leased  coal  mine  was  injured  by  fire  and 
the  lessee  was  unable  to  continue  operations.  He  executed  a  written 
surrender  but  continued  in  possession  under  a  parol  agreement  until 
a  new  tenant  could  be  found.  After  the  written  surrender  of  the  lease 
it  was  in  law  if  not  in  equity  cancelled;  and  all  the  lessee's  legal 
rights  were  terminated.  Any  parol  agreement  regarding  a  new  lease 
would  be  void  by  the  statute  of  frauds.^^^  Even  though  a  lease  be 
under  seal,  it  may  be  changed  or  abrogated  entirely  by  a  subsequent 
writing  not  under  seal  or  by  a  surrender  by  operation  of  law.^^^  It 
results  from  the  doctrine  of  surrender  by  operation  of  law  that  an  oral 
agreement  for  a  surrender,  acted  on  by  a  transfer  of  possession  is  valid 
to  put  an  end  to  a  leasehold  estate  in  spite  of  the  requirements  of  the 
statute  of  frauds;  for  instance  where  the  landlord  and  tenant  have, 
by  mutual  agreement,  consented  that  the  term  shall  end,  and  the 
possession  is  changed  in  consequence,  whether  the  landlord  re- 
enters by  himself  or  by  a  new  tenant,  that  constitutes  a  surrender  by 
operation  of  law.^^^  The  rule  of  law,  as  settled  by  the  cases,  has  been 
declared  to  be  that  any  acts  which  are  equivalent  to  an  agreement  on 
the  part  of  a  tenant  to  abandon  and  on  the  part  of  the  landlord  to  re- 
sume possession  of  demised  premises  amount  to  a  surrender  by  opera- 
tion of  law.^^®  It  necessarily  follows  that  where,  by  an  agreement  be- 
tween the  lessor  and  lessee,  the  lessee  abandons  his  possession  and  the 
lessor  resumes  possession  of  the  premises,  there  is  a  surrender  by  oper- 
ation of  law.^^*' 

^'^  National  &c.  Asso.  v.  Brewer,  41         ^-^  Talbot    v.    Whipple,    14    Allen 

111.  App.  223.  (Mass.)    177;   Grimman  v.  Legge.  8 

'-^  Dunning  v.  Mauzy,  49   111.  368.  B.  &  C.  324,  2  Man.  &  R.  436;  Dodd 

'='Bogert  v.  Dean,  1  Daly  (N.  Y.)  v.  Acklom,  6  M.  &  G.  672,  46  E.  C. 

259.  L.  672,  7  Scott  N.  R.  415;   Nickells 

^"Stewart  v.  Mumford,  91  111.  58.  v.  Atherstone,  10  A.  &  E.    (N.   S.) 

'"Prior  v.  Kiso,  81  Mo.  241.  944,  59  E.  C.  L.  944. 

'=^Phene  v.   Popplewell,   12   C.   B.         ''^"Amory      v.      KannofEsky,      117 

(N.  S.)  334,  340,  104  E.  C.  L.  334.  Mass.  351. 


§    539]  TERMINATION    OF    TENANCY.  604 

Although  the  words  of  the  statute  he  general,  making  no  exception 
in  favor  of  the  parol  surrender  of  short  term  leases,  it  seems  that  an 
estate  which  could  be  created  by  parol  could  also  be  surrendered  in  the 
same  manner.  The  mere  possibility  of  creating  the  estate  without  a 
writing  is  all  that  is  necessary,  and  it  does  not  affect  the  validity  of  the 
parol  surrender  that  the  estate  was  in  fact  granted  by  a  written  instru- 
ment.^^^ 

In  one  case  it  was  contended  that  a  recital  in  the  second  lease  of  a 
surrender  of  the  first  was  a  note  in  writing  within  the  statute  of 
frauds ;  but  the  court  were  clearly  of  opinion  that  the  fact  of  a  previous 
surrender  must  be  specially  found,  which  fact  the  recital  by  no  means 
imported.^^^  Since  this  statute,  a  lease  for  years  cannot  be  surrendered 
by  cancelling  the  indenture  without  writing,  because  the  intent  of  the 
statute  was  to  take  away  the  manner  they  formerly  had  of  transferring 
interests  in  land  by  signs,  symbols  and  words  only.^^^ 

The  circumstance  that  a  lease  provides  a  special  mode  for  ending 
the  term,  as  by  giving  notice  in  writing  three  months  previously,  does 
not  prevent  the  parties  from  effecting  a  surrender  by  operation  of  law 
just  as  if  no  agreement  of  such  sort  existed.^^* 

§  539.  A  surrender  may  be  effected  by  express  words  or  it  may  be 
implied  from  the  conduct  of  the  parties.^^^  The  term  "surrender  by 
operation  of  law"  is  properly  applied  to  cases  where  the  owner  of  a 
particular  estate  has  been  a  party  to  some  act,  the  validity  of  which 
he  is  by  law  afterwards  estopped  from  disputing  and  which  would  not 
be  valid  if  his  particular  estate  continued  to  exist.  Such  surrender  is 
the  act  of  the  law,  and  takes  place  independently  of,  and  even  in  spite 
of,  the  intentions  of  the  parties.  The  acts  in  pais,  which  bind  parties 
by  way  of  estoppel,  are  acts  of  notoriety,  not  less  formal  and  solemn 
than  the  execution  of  a  deed ;  as,  for  instance,  livery,  entry,  acceptance 
of  an  estate,  and  the  like.^^**  The  lessee  cannot  surrender  premises 
leased  to  him  before  the  expiration  of  the  term,  so  as  to  absolve  himself 
from  paying  rent  without  the  consent  of  the  lessor,  and  the  abandon- 
ment of  the  premises  with  notice  will  not  exonerate  the  lessee  from 

^'^Kiester    v.    Miller,    25    Pa.    St.  ='*  Hutcheson    v.     Jones,    79     Mo. 

481;   McKinney  v.  Reader,  7  Watts  496. 

(Pa.)    123;   Greider's  Appeal,  5  Pa.  ^'^^  Dayton  v.  Craik,  26  Minn.  133, 

St.  422.  1  N.  W.  813;   Welcome  v.  Hess,  90 

^'^Roe  V.  Archbishop  of   York,   6  Cal.  507,  27  Pac.  369. 

East  86,  101.  ='=''Lyon  v.  Reed,  13  M.  &  W.  285; 

''' Bacon's    Abr.,    tit.    Leases    and  Stern  v.  Thayer,  56  Minn.  93,  67  N. 

Terms  for  Years,  S.  W.    329;    Smith    v.    Pendergast,    26 

Minn.  318,  3  N.  W.  978. 


605  SURRENDER.  [§    540 

paying  rent  unless  the  lessor  assents.^"  A  surrender  cannot  be  effectea 
by  the  act  of  only  one  party;  the  concurrence,  in  some  way,  of  both 
lessor  and  lessee  is  necessary  in  order  to  accomplish  a  surrender. 
Hence,  whatever  the  lessee  may  have  done,  if  it  is  undisputed  that  the 
lessor  refused  to  accept  the  surrender,  the  estate  is  not  ended.^^^  Where 
a  lessee  who  is  bound  by  a  valid  lease  refuses  to  occupy  and  abandons 
the  premises,  he  does  not  thereby  put  any  duty  upon  the  lessor  to 
reduce  damages  by  letting  the  premises  to  another  tenant,^^''  The 
landlord  is  not  under  obligation  to  relet  them,  but  may  suffer  them  to 
remain  vacant  and  recover  the  entire  rent  for  the  balance  of  the  term 
from  the  lessee.^*" 

An  entire  abandonment  of  the  demised  premises  by  a  tenant  exposing 
them  to  risk  of  loss  gives  the  lessor  a  right  to  declare  the  lease  at  an 
end,  and  the  lessee  cannot  return  and  claim  to  continue  under  the 
lease.^*^  But  the  mere  failure  to  reside  on  premises,  where  some  acts 
of  repairing  were  done,  and  there  was  a  sufficient  reason  for  the 
lessee's  not  planting  crops,  has  been  held  not  to  amount  to  such  an 
abandonment  of  a  leased  farm  as  to  entitle  the  lessor  to  consider  the 
term  at  an  end.^*^ 

§  540.  Executed  agfreement. — A  parol  license  to  quit  will  not  of 
itself  operate  as  a  surrender  of  the  tenant's  interest.^*^  But  where  the 
tenant  gives  up  possession  in  pursuance  of  such  a  license,  and  the 
landlord  accepts  it,  the  license,  coupled  with  the  fact  of  the  change  of 
possession,  operates  as  a  surrender  by  act  and  operation  of  law,  and 
the  landlord  cannot  recover  any  rent  which  becomes  due  after  his  ac- 
ceptance of  the  possession.^**  It  is  well  settled  American  law  that  an 

^"Stobie  v.  Dills,  62  111.  432;  Ab-  Aberdeen  Coal  &c.  Co.  v.  Evansville, 

erdeen   Coal   &c.   Co.   v.   Evansville,  14  Ind.  App.  621,  43  N.  E.  316. 

14  Ind.  App.  621,  43  N.  E.  316.    Con-  '"  Merrill  v.   Willis,   51   Neb.   162, 

ditional  agreement.    Where  a  land-  72  N.  W.  734. 

lord    agrees    to    release    his    tenant  ^"Worrall    v.    Wilson,    101    Iowa 

from  liability  for  rent  for  the  bal-  475,  70  N.  W.  619. 

ance  of  the  term,  provided  another  ^^  Hough  v.  Brown,  104  Mich.  109, 

tenant  is  obtained  in  his  stead,  there  62  N.  W.  143. 

is  no  surrender  when  no  other  ten-  ^*^  National   &c.    Asso.   v.    Brewer, 

ant  is  obtained  to  take  the  premises.  41  111.  App.  223;  Dunning  v.  Mauzy, 

Churchill  v.  Gronewig,  81  Iowa  449,  49  111.  368. 

46  N.  W.  1063.  ="  Grimman   v.   Legge,   8  B.   &  C. 

'^  Lewis  V.  Fish,  40  111.  App.  372;  324,    per   Bayley,   J.;    Whitehead   v. 

Jones  V.  Rushmore,  67  N.  J.  L.  157,  Clifford,    5    Taunt.    518;    Brown    v. 

50   Atl.    587;    Meeker   v.    Spalsbury,  Burtinshaw,  7   D.   &  R.   603;    Walls 

66  N.  J.  L.  60,  48  Atl.  1026.  v.  Atcheson,   11    Moore  379;    Phene 

'''Becar  v.  Flues,   64   N.   Y.   518;  v.  Popplewell,  12  C.  B.   (N.  S.)  334, 


§    540]  TEEMINATIOX    OF   TENANCY.  606 

agreement  for  the  tenant  to  abandon  possession  and  for  the  landlord  to 
resume  his  occupancy,  when  acted  upon  by  the  parties,  amounts  in  law 
to  a  surrender  of  the  term.^^^  As  long  as  such  an  agreement  is  execu- 
tory, the  landlord's  offer  to  accept  a  surrender  may  be  revoked  and 
the  tenant  would  continue  bound  for  the  full  term.^*^  Where  a  land- 
lord agrees  to  a  surrender  of  the  premises  by  his  lessee  and  to  accept 
another  tenant  in  his  place,  and  the  new  tenant  goes  into  possession, 
those  facts  constitute  a  transfer  of  possession  to  the  landlord  and 
hence  a  surrender  by  operation  of  law.^*'^  Thus  the  acceptance  of  keys 
by  a  landlord,  who  at  once  moved  into  the  house  and  advertised  it  for 
sale,  constituted  a  surrender  by  operation  of  law.^*^  Upon  a  written 
assignment  of  a  lease,  the  original  lessor  and  lessee  entered  into  a 
parol  agreement  to  the  effect  that  the  lessor  would  discharge  the 
lessee  from  all  further  liability  and  look  only  to  the  assignee.  Acting 
upon  this  agreement,  the  landlord  recognized  the  assignee  as  tenant 
and  accepted  rent  from  him.  The  admission  of  such  evidence  was  not 
objectionable  as  varying  a  written  instrument  by  parol,  for  this  was 
separate  and  distinct  from  the  agreement  in  writing  and  constituted 
a  surrender  by  operation  of  law.^***  Moreover,  an  agreement  between 
the  landlord  and  a  tenant  in  possession  for  the  sale  of  the  premises 
has  been  held  to  amount  to  a  surrender  of  an  existing  lease.  Between 
the  time  when  the  agreement  was  made  and  the  time  when  it  was  to  be 
executed  the  landlord  must  be  deemed  to  be  in  possession.^^'' 

A  parol  agreement  to  release,  followed  by  a  delivery  of  keys  to 
lessor,  putting  up  "To  Let"  signs  by  him  and  attempts  to  lease  to  third 
parties,  amounts  to  a  surrender  by  operation  of  law.^^^   But  the  parol 

104  E.  C.  L.  334.     See  also,  Hessel-  '*"  Dunning  v.  Mauzy,  49  111.  368. 

tine  V.  Seavey,  16  Me.  212;   Hall  v.  ="  Donahoe   v.   Rich,   2   Ind.   App. 

Burgess,  5  B.  &  C.  332.  540,  28  N.  E.  1001. 

^"  Hanham  v.  Sherman,  114  Mass.  ^*^  Kiernan   v.    Germain,   61    Miss. 

19;    Carson    v.    Arvantes,    10    Colo.  498. 

App.    382,    50    Pac.    1080;    Dills    v.  ^"Levering   v.    Langley,    8    Minn. 

Stobie,    81    111.    202;    Evans   v.    Mc-  107. 

Kanna,  89  Iowa  362,  56  N.  W.  527;  ^^''Denison    v.    Wertz,    7    S.    &   R. 

Churchill  v.  Lammers,  60  Mo.  App.  (Pa.)    372.     A  condition  of  a  lease 

244;   Buffalo  Co.  Nat.  Bank  v.  Han-  that   the   surrender   thereto   should 

son,   34   Neb.   455,   51   N.   W.   1035;  satisfy    all    damages    between    the 

Wheeler  v.  Walden,  17  Neb.  122,  22  parties  applies  to  future  rents  and 

N.  W.  346;  Elliott  v.  Aiken,  45  N.  H.  not  to  rents  already  accrued.     Ed- 

30;  Miller  v.  Dennis,  68  N.  J.  L.  320,  monds    v.    Mounsey,    15    Ind.    App. 

53  Atl.  394;  Lamar  v.  McNamee,  10  399,  44  N.  E.  196. 

Gill  &   J.    (Md.)    116;    Williams  v.  ^"Foster   v.    Fleishans,    69    Mich. 

Jones,  1  Bush   (Ky.)   621.  543,  37  N.  W.  549. 


II 


607  SURRENDER.  [§    541 

agreement  is  not  effectual  to  terminate  a  lease  till  it  has  been  acted 
upon  by  the  transfer  of  possession  to  the  landlord.^®^ 

§  541.  Cancellation  and  destruction  of  lease. — The  requirements 
of  the  statute  of  frauds  as  to  what  constitutes  a  valid  surrender  in 
fact  are  such  that  they  exclude  a  cancellation  or  destruction  of  the 
document.  "Since  this  statute,"  says  Bacon  in  his  abridgment,  "a  lease 
for  years  cannot  be  surrendered  by  cancelling  the  indenture,  without 
writing,  because  the  intent  of  the  statute  was  to  take  away  the  man- 
ner they  formerly  had  of  transferring  interests  in  lands  by  signs, 
symbols,  and  words  only."  The  same  authority  also  states  the  reason 
for  this  to  be  that  "such  deed  or  indenture  being  not  of  the  essence 
of  the  lease,  the  destruction  or  cancelling  thereof  shall  not  destroy  or 
defeat  the  lease  or  interest  of  the  lessee,  because  his  actual  entry  into 
the  land,  and  continuance  of  the  visible  possession  and  occupation 
thereof,  give  sufficient  sanction  and  notoriety  to  the  contract."^^* 
When  this  question  came  before  the  court  of  King's  Bench^^*  Lord 
Ellenborough  said  that  the  court  never  entertained  any  doubt  about  it, 
"for,  as  it  is  enacted  by  the  statute  of  frauds  that  no  lease  of  any  lands 
or  houses  shall  be  surrendered  unless  by  deed  or  note  in  writing, 
signed  by  the  party  or  his  agent  thereunto  lawfully  authorized  by  writ- 
ing, or  by  act  and  operation  of  law,  the  act  of  cancellation,  which  can 
in  no  allowable  sense  of  the  words  be  considered  as  either  a  deed  or  a 
note  in  writing,  cannot,  since  that  statute,  be  a  surrender."  The 
doctrine  has  been  subsequently  affirmed  by  the  Court  of  Exchequer.^^^ 
In  accordance  with  the-  English  authorities  it  is  almost  universally  held 
in  the  United  States  that  where  a  conveyance  of  land  operates  by  way 
of  transmutation  of  possession,  the  mere  cancellation  or  redelivery  of 
the  deed,  by  mutual  consent  or  otherwise,  while  it  may  destroy  the 
covenants  on  either  side  therein  contained,  will  not  of  itself  revest  the 
estate  in  the  grantor,  and  this  though  the  deed  may  never  have  been 
recorded.^^^ 

^"National   &c.   Asso.   v.    Brewer,  house,  4  Conn.  550;~Gilbert  v.  Bulk- 

41   111.  App.  223;    Elliott  v.   Aiken,  ley,  5  Conn.  262.     Georgia:    Jordan 

45  N.  H.  30.  V.    Pollock,    14    Ga.    145.      Illinois: 

"^  Bacon    Abr.     Tit.    Leases    and  Brewer  v.   National   &c.   Asso.,   166 

Terms  for  Years,  §§  S.  and  T.  111.  221,  46  N.  E.  752,  affirming  61 

=^*Roe  v.   Archbishop  of  York,   6  111.  App.  161.    Indiana:   Connelly  v. 

East  86.  Doe,  8  Blackf.  320.     Massachusetts: 

'"Ward  V.  Lumley,  5  H.  &  N.  87.  Hatch  v.  Hatch,  9   Mass.  307;    Hol- 

'"^  Alabama :  Mallory  v.  Stodder,  6  brook  v.  Tirrell,  9  Pick.  105;  Chess- 
Ala.  801;  King  v.  Crocheron,  14  Ala.  man  v.  Whittemore,  23  Pick.  231. 
822.    Connecticut:  Botsford  v.  More-  Missouri:  Tibeau  v.  Tibeau,  19  Mo. 


§■  542]  TERMINATION   OF   TENANCY.  608 

§  542.  A  common  method  of  effecting  a  surrender  of  a  term  for 
years  by  operation  of  law  is  by  the  substitution  of  a  new  lease. 
"For  the  principle  is  well  settled  that  if  a  lessee  accept  and  enter  under 
a  lease  from  his  lessor  to  commence  before  the  expiration  of  the  first, 
the  acceptance  of  the  new  lease,  as  it  admits  the  ability  of  the  lessor  to 
make  such  new  lease,  operates  in  law  as  a  surrender  of  the  first."^^^ 
The  execution  and  acceptance  by  both  parties  of  a  lease  intended  as  a 
substitute  for  a  former  lease  which  had  been  destroyed  must  be  held 
as  amounting  in  law  to  a  surrender  of  the  former  lease  and  of  all  rights 
growing  out  of  a  parol  agreement  collateral  to  the  first  lease.^^^ 

A  written  lease  was  given  of  certain  property,  but  possession  was 
not  taken  under  it.  Subsequently  the  parties  entered  into  a  different 
parol  agreement  for  a  lease  and  possession  was  transferred  in  pursuance 
thereof.  This  operated  as  a  surrender  of  the  first  lease,  and  complain- 
ant was  entitled  to  have  it  cancelled.^^^  In  a  Missouri  case  the  exe- 
cution by  the  lessor  of  a  short  lease  to  a  third  person  was  held  not  to 
be  a  surrender  of  an  outstanding  lease.  The  lessee  had  agreed  that  the 
lessor  should  execute  the  short  lease  for  the  purpose  of  satisfying  a 
debt  due  to  such  third  party  from  the  lessee,  and  it  was  agreed  that 
after  the  termination  of  the  short  lease  the  lessee  should  resume  his 
possession  under  the  original  long  one.  This  was  not  a  surrender 
of  the  original  lease,  because  such  an  effect  would  be  contrary  to 
the  intention  of  the  parties.^*''^ 

The  surrender  of  a  lease  by  the  owner  of  an  equity  of  redemp- 
tion in  a  leasehold  estate  and  his  acceptance  of  another  one  in  its 
place  can  have  no  effect  against  the  mortgagee,  or  any  tenant  hold- 
ing under  title  from  him.  The  second  lease  and  the  reservation 
of  rent  in  it  would  be  inoperative  to  bind  the  successive  assignees 
of  the  original  leasehold,  if  the  mortgagee  did  not  assent  to  the 
surrender.  Either  the  mortgagee  or  the  purchaser  at  a  sale  under 
the  mortgage  could  ratify  and  approve  the  arrangement,  and  where 
the  new  lease  was  simply  to  rectify  an  error  in  boundary,  there 

78;   Lawrence  v.  Lawrence,  24  Mo.  Jones   v.   Neale,   2   Patt.   &   H.   339. 

269.    Mississippi:  Whltton  v.  Smith,  Wisconsin:    Parker  v.  Kane,  4  Wis.  1. 
Freem.  231.     New  York:  Jackson  v.         ''"Coleman   v.   Mabberly,   3   T.   B. 

Anderson,     4  Wend.  474;  Jackson  v.  Mon.   (Ky.)   220,  per  Baylie,  C.  J. 
Page,  4  Wend.  585 ;  Schutt  v.  Large,        ^'^  Hoag  v.  Carpenter,  18  111.  App. 

6  Barb.   373;    Raynor  v.   Wilson,   6  555;  Enyeart  v.  Davis,  17  Neb.  228. 

Hill  469;  Rowan  v.  Lytle,  11  Wend.  22  N.  W.  449. 

617.    Pennsylvania:  Wiley  v.  Christ,        ^''' Switzer    v.    Gardner,    41    Mich. 

4  Watts  196,  199.     Virginia:    Gray-  164,  2  N.  W.  191. 
sons    v,    Richards,    10    Leigh    57 ;         ^^  Thomas   v.    Zumbalen,    43    Mo. 

471. 


609  SURRENDER.  .[§    543 

could  be  no  more  positive  and  unequivocal  manner  of  ratification  than 
by  taking  and  enjoying  the  benefits  conferred  by  it.^^^ 

§  543.  The  doctrine  of  Thomas  v.  Cook,^^^  ^s  laid  down  by  the  court 
of  King's  Bench,  is  that  it  constitutes  a  surrender  by  operation  of  law 
for  a  landlord  to  accept  rent  directly  from  an  undertenant  who  has 
been  put  in  possession  by  the  lessee  and  then  subsequently  to  distrain 
the  undertenant's  goods  for  rent  in  arrear.  The  court  reason  that  "if 
a  lease  be  granted  to  an  individual  and  there  be  a  subsequent  demise 
of  the  premises  by  parol  to  the  same  person,  that  will  amount  to  a  sur- 
render of  the  lease.  Then  the  circumstance  of  the  lessee  having  first  put 
in  another  person  as  undertenant,  and  having  afterwards  assented  to  a 
second  demise  by  the  landlord  to  that  person,  will  amount  to  a 
virtual  surrender  of  his  interest  by  act  and  operation  of  law."  The  rule 
laid  down  by  this  decision  has  been  followed  both  in  England^  ^^  and 
in  this  country,^''*  and  it  would  probably  be  held  generally  that  a  new 
lease  to  a  stranger,  with  the  assent  of  the  lessee,  would  be  as  effectual 
to  work  a  surrender  by  operation  of  law  as  a  new  lease  to  the  original 
lessee.  The  execution  of  a  new  lease  by  the  landlord  to  a  third  party, 
with  the  consent  of  the  tenant,  and  actual  occupation  under  such  lease 
constitutes  a  surrender  of  a  former  one  by  operation  of  law.  An 
actual  and  continued  change  of  possession  by  the  mutual  consent  of  the 
parties  will  operate  as  a  surrender  by  operation  of  law.^'^^  A  new  lease 
by  parol  to  a  third  party  who  enters  into  possession  in  the  place  of  the 
former  lessee,  who  held  under  an  instrument  in  writing,  was  held  to 
constitute  a  surrender  by  operation  of  law.^*'*'  The  execution  of  a  sec- 
ond lease  to  another  person  with  the  assent  of  all  parties  has  been  held 

'"Judik  v.  Crane,  81  Md.  610,  32  Beall  v.  White,  94   U.  S.  382,  389; 

Atl.  276.  Logan      v.      Anderson,      2      Dougl. 

'«2  Thomas  v.  Cook,  2   Stark.  360,  (Mich.)    101;    Hoerdt  v.  Hahne,  91 

2  B.  &  Aid.  119.  111.  App.  514;   Palmer  v.  Myers,  79 

='«^Nickells  v.  Atherstone,  10  A.  &  111.  App.  409;   Hesseltine  v.  Seavey, 

E.  (N.  S.)  944,  59  E.  C.  L.  944;  Wood-  16  Me.  212;   Lamar  v.  McNamee,  10 

cock  V.  Nuth,  8  Bing.  170,  21  E.  C.  Gill    &    J.     (Md.)     116;    Randall    v. 

L.  492;  Davison  v.  Gent,  1  H.  &  N.  Rich,  11  Mass.  494. 

744.  ^^^^  Williams  v.  Vanderbilt,  145  111. 

^'"Bowen  v.  Haskell,  53  Minn.  480,  238,  34  N.  E.   476;    Stobie  v.  Dills, 

55  N.  W.  629;  Amory  v.  Kannoffsky,  62  111.  432;   Morgan  v.  McCollister, 

117    Mass.    351;    Coe   v.    Hobby,    72  110  Ala.  319,  20  So.  54. 

N.  Y.  141,  145;  Bedford  v.  Terhune,  =""' Koenig  v.  Miller  Bros.  &c.  Co., 

30  N.  Y.  453,  463;  Smith  v.  Kerr,  108  38   Mo.  App.   182;    Wallace  v.   Ken- 

N.  Y.  36,  15  N.  E.  70;   Underbill  v.  nelly,  47  N.  J.  L.- 242. 
Collins,  132  N.  Y.  271,  30  N.  E.  576; 
Jones  L.  &  T.— 39 


§    544]  TEEillXATIOX    OF    TEXAXCY.  610 

to  operate  as  a  surrender  of  a  prior  one,  even  though  the  original 
lessees  remain  in  possession  as  sub-tenants  under  the  second  lessee.^ ^^ 
In  one  case  a  new  lease  was  made  to  different  parties  and  the  old  lessee 
held  over  under  an  agreement  between  new  and  old  lessees  whereby  the 
latter  were  to  remain  in  possession  and  pay  the  rent  reserved  under 
the  new  lease  directly  to  the  lessors.  The  acceptance  of  the  rent  by  the 
lessor  under  this  agreement  did  not  amount  to  a  surrender  of  the  new 
lease,  nor  did  it  discharge  the  new  lessee  from  his  covenant  to  pay 
rent.^*'® 

The  agreement  to  release  the  original  lessee  and  accept  other  tenants 
in  their  stead  need  not  necessarily  be  expressed.  It  may  be  inferred 
from  the  conduct  of  the  parties.  Eendering  a  bill  to  another  occupant 
of  the  premises  for  rent  and  accepting  payment  from  him  is  a  sufficient 
basis  for  inferring  a  release  of  the  original  lessee.^^^  Thus  in  a  tenancy 
from  year  to  year,  a  surrender  by  operation  of  law  takes  place  when  by 
consent  of  both  parties  another  person  becomes  tenant  of  the  premises 
and  the  landlord  collects  rent  from  him.^^°  But  it  has  been  held  that 
the  agent  of  the  landlord  to  rent  premises  may  become  the  agent  of 
the  tenant  to  sub-let  them  without  causing  a  surrender  of  the  term.^^^ 
In  another  case  it  was  held  that  the  receipt  by  the  lessor  of  rent  from 
an  undertenant  of  part  of  the  premises  is  no  evidence  of  consent  to 
an  abandonment  by  the  lessee  for  want  of  repairs.^"^ 

§  544.  The  foregoing  doctrine  has  been  restricted  in  its  applica- 
tion by  a  subsequent  English  case.^"  In  the  decision  referred  to  there 
there  was  an  outstanding  sub-lease  at  the  time  a  second  lease  was  made 
by  the  original  lessor  to  a  third  person,  which  was  claimed  to  effect  a 
surrender  by  operation  of  law  of  the  original  lease.  So  the  subject- 
matter  of  the  alleged  surrender  was  a  reversion  consequent  upon  a  term 
for  years.  The  court  held  that  even  if  it  felt  bound  by  the  rule  of 
Thomas  v.  Cook,  where  there  was  an  open  and  notorious  shifting  of 
the  actual  possession,  it  did  not  follow  that  they  would  adopt  the 
same  doctrine  where  reversions  or  incorporeal  hereditaments  are  dis- 
posed of,  which  pass  only  by  deed.  In  the  case  under  consideration 
there  was  not  a  surrender  by  operation  of  law.    The  court  further  es- 

^'^  Donkersley   v.    Levy,    38    Mich.  &    C.    332;    Matthews   v.    Sawell,   8 

54.  Taunt.  270. 

'«« Field  V.  Herrick,  101  111.  110.  ==''  Hirsch  v.  Oliver,  91  Ga.  554,  18 

369  Fry  V.  Patridge,  73  111.  51.  S.  E.  354. 

"0  Clemens  v.   Broomfield,   19   Mo.  ""'-  Slacum  v.  Brown,  5  Cranch  C. 

118;    citing  Bees  v.  Williams,   2   C.  C.  315,  22  Fed.  Cas.  No.  12934. 

M.  &  R.  581;  Hall  v.  Burgess,  5  B.  ="  Lyon  v.  Reed,  13  M.  &  W.  285. 


I 


611  SURRENDER.  [§§  545,   546- 

presses  an  opinion  that  the  case  of  Thomas  v.  Cook  was  an  innovation 
and  was  not  borne  out  by  the  principles  of  the  ancient  law.  That  law 
was  that  the  consent  of  the  tenant  for  life  to  the  remainderman  making 
a  feoffment  to  a  stranger  did  not  amount  to  a  surrender  of  the  estate 
for  life."*  To  constitute  a  surrender  by  operation  of  law,  overt  acts  of 
l)oth  parties  inconsistent  with  the  continuance  of  the  term  are  essen- 
tial. Thus  the  interest  of  one  of  two  joint  lessees  in  the  demised 
premises  is  not  surrendered  to  the  lessor  by  operation  of  law  by  a  sale  of 
it  to  the  co-lessee,  accompanied  with  a  parol  agreement  between  the 
lessor  and  the  latter  that  the  lessor  will  thereafter  look  to  the  co-lessee 
for  the  performance  of  the  covenants  of  the  lease.^^^ 

§  545.  Change  in  terms. — Wliere  the  parties  to  a  lease  agree  to  a 
reduction  of  rent,  and  the  smaller  sum  is  paid  and  accepted,  this  has 
been  held  to  operate  as  a  surrender  of  the  former  term  and  a  new  let- 
ting at  a  lower  rate."^  The  intention  of  the  parties  is  the  test,  and 
the  question  arises  whether  a  reduction  in  rent  is  such  a  material 
change  in  the  terms  of  the  holding  as  to  show  a  surrender  of  the  for- 
mer term.  However,  it  is  certainly  true  that  every  modification  in  a 
contract  of  lease  does  not  constitute  a  new  lease  and  operate  as  a  sur- 
render. To  make  it  a  surrender  by  operation  of  law  the  second  lease 
must  be  in  all  its  essentials  a  complete  and  operative  lease,  because  no 
implication  arises,  unless  one  perfect  lease  is  substituted  by  another 
and  the  existence  of  the  last  is  inconsistent  with  that  of  the  first.^"  A 
parol  lease  to  a  tenant  in  possession  may  take  effect  as  a  surrender  of 
an  existing  written  lease  to  the  same  person.^^^  Where  a  tenant  holds 
over  from  year  to  year  after  expiration  of  a  lease  under  seal,  a  parol 
agreement  regarding  the  amount  of  rent  and  the  time  of  payment  and 
payment  of  rent  under  such  agreement  constitute  a  new  lease  and  the 
terms  of  the  old  lease  are  no  longer  binding.^"'' 

§  546.  Leases  in  future. — "Lessee  for  years  to  begin  presently  can- 
not, till  entry  or  waiver  of  the  possession  by  the  lessor,  merge  or  drown 
the  same  by  any  express  surrender,  because  till  entry  there  is  no  re- 

"*  Swift  v.   Heath,   Carthew   110;  238,  77  N.  W.  184;    Dills  v.  Stobie, 

Viner's  Abr.,  "Surrender,"  F.  3  and  81  111.  202. 

4;    Brooke  Abr.   tit.   Surrender,   pi.  ="  Hurtt  v.  Woodland,  24  Md.  393. 

^8.  378  Ryan  V.  Kirchberg,  17  111.  App. 

'"'Felker  v.  Richardson,  67  N.  H.  132. 

509,  32  Atl.  830.  ='«  Goldsbrough    v.    Gable,    36    111. 

''"Ossowski  v.  Wiesner,  101  Wis.  App.  363. 


§    547]  TEKMINATION   OF   TENANCY.  612 

version  wherein  the  possession  may  drown."^®*'  It  is  also  well  settled 
that  an  agreement  by  a  tenant  to  surrender  in  the  future  does  not  give 
the  landlord  a  right  to  enforce  the  agreement  by  summary  proceed- 
ings. He  must  resort  to  his  action  for  damages.^^^  In  Illinois  the  can- 
cellation of  a  lease  prior  to  the  time  when  the  term  was  to  commence 
was  nevertheless  held  to  be  a  valid  surrender.  The  court  point  out  that 
the  requirement  for  a  deed  or  note  in  writing  was  omitted  in  the 
Illinois  statute  of  frauds,  and  add :  "It  is  true  the  cancellation  in  this 
case  was  accompanied  by  no  surrender  of  the  premises  for  the  very  ex- 
cellent reason  that  the  [parties]  had  never  been  in  possession.  .  .  . 
The  lease  was  the  only  tangible  thing  in  their  possession  which  they 
could  surrender,  and  we  see  no  reason  why  such  surrender,  if  made 
with  the  intention  of  terminating  or  cancelling  the  tenancy,  provided 
such  intention  was  assented  to  and  participated  in  by  the  lessors,  was 
not  valid  as  a  surrender  of  the  term."^^^ 

§  547.  Where  a  tenant  leaves  the  land  and  abandons  the  posses- 
sion, and  afterwards  reenters,  but  adversely  to  his  former  landlord, 
the  effect  is  an  interruption  of  the  possession  of  the  landlord  not  only 
of  the  place  where  the  reentry  is  made,  but  as  to  the  whole  tract,  ex- 
cept so  far  as  the  landlord  retains  possession  by  other  means.^^^  Where 
a  tenant  vacates  the  leased  premises  and  abandons  them,  he  forfeits  all 
his  rights  under  the  lease,  and  cannot  maintain  an  action  against  the 
landlord  for  entering  upon  them.^^*  If  a  tenant  renting  for  crop  rent 
abandons  the  farm,  the  crops  revert  to  the  landlord  and  the  tenant  can- 
not sell  the  crops  to  his  prejudice.^''^  But  when  a  tenant  abandons  his 
crop  and  fails  to  perform  the  terms  of  his  lease,  the  landlord  may 
gather  it  and  take  out  of  it  and  retain  against  the  tenant's  mortgagee 
of  the  crop  the  expense  of  preserving  it  from  waste  and  preparing  it 
for  market,  as  well  as  the  rent.^^^  By  reentering,  cultivating  and 
gathering  the  crop  after  an  abandonment  of  the  tenant  the  landlord 
terminates  the  lease.  It  is  not  to  the  mere  use  and  occupation  of  the 
lands  that  the  landlord  succeeds  upon  reentering.  All  growing  crops 
pass  to  him  as  incident  to  his  restoration  to  the  possession  and  to  the  1 

^'"Bacon's    Abr.,    tit.    Leases    and  ^-*  Haller  v.  Squire,  91  Iowa  10,  58 

Terms  for  Years,  §  S.  N.  W.  921. 

'"  Fish    V.    Thompson,    129    Mich.  ^^°  Maclary    v.    Turner,    1    Marvel 

313,  88  N.  W.  896.  (Del.)   24. 

^'  Beidler  v.  Fish,  14  111.  App.  29.  ^^^  Fry  v.  Ford,  38  Ark.  246.     See 

383  Myers     v.     Sanders,     7     Dana  Sanders    v.    Ellington,    77    N.    Car 

(Ky.)  506,  527.  255,  and  Carpenter  v.  Jones,  63  111 

517. 


f 


I 


613  SURRENDER.  [§    548 

termination  of  the  tenancy.  No  right  or  interest  in  them  remains  to  the 
tenant.^"  On  principles  of  obvious  justice  it  is  held  that,  if  a  tenant, 
before  the  expiration  of  the  term,  abandons  the  premises  he  has  leased 
or  rented,  the  landlord  is  not  bound  to  let  them  remain  vacant,  but 
may  reenter  and  occupy  himself,  or  may  lease  to  another.^^*  Ordinarily 
where  a  tenant  dies  pending  a  lease,  the  unexpired  term  continues  to 
be  the  property  of  his  estate,  which  is  liable  for  the  agreed  rent,^*® 
but  there  is  a  distinction  whereby  a  contract  governing  a  single  year 
title  to  all  crops  is  to  remain  in  the  landlord  till  the  rent  and  advances 
are  paid,  and  the  tenant  dies  before  the  cultivation  of  the  crop  is  fin- 
ished. As  the  crop  belonged  to  the  landlord,  if  it  was  reasonably 
necessary  under  all  the  circumstances  for  him  to  enter  to  preserve  his 
rights,  he  could  do  so  lawfully.^^*^ 

Where  mines,  which  had  been  leased  for  a  term  of  twenty-five  years, 
were  not  worked  at  all  and  no  rent  had  been  paid  for  eight  years  and 
the  lessees  were  not  in  possession,  it  was  held  that  the  lessors  were 
justified  in  treating  the  lease  as  abandoned  and  in  executing  a  new  lease 
to  other  parties,  which  could  not  be  annuUed.^^^  But  different  con- 
siderations must  be  taken  into  account  where  a  lump  sum  has  been  paid 
as  the  consideration  for  granting  the  lease.  In  that  case  failure  for  fif- 
teen or  eighteen  years  to  develop  mining  property  was  not  conclusive 
proof  of  abandonment,  especially  if  there  is  some  evidence  that  the 
parties  intended  to  develop  the  property  as  soon  as  they  were  able.^^^ 

§  548.  The  delivery  of  the  key  by  the  tenant  and  keeping  it  by  the 
landlord  are  not  sufficient  to  show  a  surrender  of  the  premises  by  the 
tenant  and  an  acceptance  by  the  landlord,  unless  that  appears  to  be 
the  intention  of  both  parties.^"^  In  an  English  case^^*  the  tenant,  upon 
the  bankruptcy  of  his  landlord,  sent  the  key  to  the  office  of  his  official 
assignee,  where  it  was  left  with  his  clerk,  and  immediately  left  pos- 
session of  the  premises,  and  no  further  communication  took  place. 

^'Shahan  v.  Herzberg,  73  Ala.  59;         '»^  Thomas  v.  Sanford  &c.  Co.,  71 

Wheat  V.  Watson,  57  Ala.  581.  Me.    548;    Withers   v.   Larrabee,    48 

^'Schulsler  v.  Ames,  16  Ala.  73;  Me.  570;  Livermore  v.  Eddy,  33  Mo. 

Wheat  V.  Watson,  57  Ala.  581.  547;  Martin  v.  Stearns,  52  Iowa  345, 

'''Hutchings  v.  Commercial  Bank,  3  N.  W.  92;  Blake  v.  Dick,  15  Mont. 

91  Va.  68,  20  S.  E.  950.  236,  18  Pac.  1072;  Auer  v.  Penn,  99 

'""Riddle  v.  Hodge,  83  Ga.  173,  9  Pa.   St.  370;    Thomas  v.   Nelson,   69 

S.  E.  786.  N.  Y.  118;    Griffith  v.  Hodges,  1  C. 

'"Porter   v.   Noyes,   47   Mich.    55,  &  P.  419;  Newton  v.  Speare  &c.  Co., 

10  N.  W.  77.  19  R.  I.  546,  37  Atl.  11. 

'^'Breyfogle   v.   Wood,   15   Ky.   L.         '"*  Cannan   v.   Hartley,  9  M.  G.  & 

R.  782.  S.  634,  67  E.  C.  L.  634. 


§•   548]  TERMIXATIOX    OF    TEXAXCY.  614 

This  was  held  not  to  amount  to  a  surrender  by  act  of  law.  "I  am  of 
opinion,"  says  Wilde,  C.  J.,  in  the  ease  referred  to,  "that  there  was  no 
evidence  of  a  surrender  and  acceptance  which  could  have  been  properly 
left  to  the  jury."  "But  it  is  said,"  remarks  Maule,  J.,  "that  the  con- 
duct of  the  official  assignee  in  not  returning  the  key  amounts  to  an 
acceptance  of  it.  I  do  not  think  the  official  assignee  was  bound  to  seek 
out  the  tenant  for  the  purpose  of  rendering  back  the  key."  The  taking 
of  a  key  would  be  no  more  than  entering  and  shutting  a  door  of  the 
premises  would  be.^^^  So  it  was  held  if  a  tenant  quits  the  premises 
during  the  term,  and  the  landlord  accepts  the  key,  stating  that  he  re- 
ceives the  key  but  not  the  premises,  it  is  not  an  acceptance  of  the  sur- 
render.^®' Where  the  lessor,  on  accepting  the  key  to  leased  premises 
from  the  lessee,  takes  it  on  the  express  condition  that  the  lessee  shall 
continue  liable  for  the  rent  unless  the  premises  are  subsequently  leased, 
this  does  not  constitute  a  surrender  by  operation  of  law.^^^  Merely 
sending  a  key  of  premises  to  the  owner  is  not  such  a  surrender  and 
acceptance  of  the  premises  as  will  discharge  the  tenant  from  liability 
for  rent.^®^  It  is  not  from  the  return,  but  from  the  return  and  accept- 
ance of  the  key,  that  by  operation  of  law  a  surrender  of  the  lease  may 
be  presumed.^ ^^  The  landlord's  failure  to  return  keys  which  have  been 
sent  to  him  by  a  tenant  who  is  vacating  the  leased  premises  does  not 
effect  a  surrender  by  operation  of  law.*'"^  The  court  remarked  in  one 
case :  "We  are  by  no  means  prepared  to  concede  that  an  abandonment 
of  the  premises  by  the  tenant,  and  a  delivery  to  and  acceptance  of  the 
keys  by  the  landlord,  would  alone  necessarily  amount  to  a  surren- 
^gp  "401  rpj^g  mere  act  of  the  landlord  and  his  wife  in  picking  up  the 
key  of  the  demised  premises  from  the  doorstep  of  his  house,  where  the 
tenant  had  thrown  it,  and  keeping  it,  does  not  show  an  acceptance  of 
the  tenant's  abandonment.  Whether  landlord's  acceptance  of  keys  and 
resumption  of  possession  amounts  to  a  surrender  of  a  lease  depends  on 
the  intention  of  the  parties.  The  landlord  has  a  right  to  accept  the 
keys  and  take  possession  of  the  premises  to  protect  them  from  waste. 
The  law  does  not  necessarily  infer  a  surrender  from  such  acts.*"^  The 

^'"Walker    v.    Furbush,    11    Cush.  '="  Bacon  v.   Brown,    9    Conn.   334, 

(Mass.)    366.  339;  Spies  v.  Voss,  16  Daly  (N.  Y.) 

"'"' Townsend    v.    Albers,    3    E.    D.  171. 

Smith  (N.  Y.)  460.  *">  Thomas  v.  Nelson,  69  N.  Y.  118. 

^^'  Nelson  v.   Thompson,  23  Minn.  ""'  Lucy  v.  Wilkins,  33  Minn.  441, 

508.  23  N.  W.  861,  per  Mitchell,  J.;  Diehl 

^^'' Newton  v.  Speare  &c.  Co.,  19  R.  v.  Lee   (Pa.),  9  Atl.  865. 

I.   546,  37   Atl.   11;    Buck  v.  Lewis,  *°- Ladd  v.  Smith,  6  Ore.  316. 
46  Mo.  App.  227. 


615  SURRENDER.  [§    549 

landlord  may  even  proceed  to  make  repairs  on  the  abandoned  premises 
if  he  does  not  occupy  or  use  them.**'^  But  the  nature  of  the  repairs 
may  show  that  the  landlord  intended  to  accept  the  surrender.  As 
where  the  landlord  made  repairs  for  his  own  benefit  and  not  merely  to 
prevent  injury  to  the  premises.*"*  And  it  has  been  held  that  an  entry 
by  the  landlord  to  make  repairs  after  the  tenant  has  abandoned  the 
premises  is  an  election  to  treat  the  abandonment  as  a  surrender.**'^ 

§  549.  After  an  unauthorized  abandonment  by  a  tenant,  the  land- 
lord may  by  taking  proper  precautions  relet  to  another  without  creat- 
ing a  surrender  by  operation  of  law,  but  he  is  not  bound  to  do  so. 
In  a  recent  case  it  was  said:  "The  rule  sanctioned  by  the  decided 
weight  of  authority,  if,  indeed,  there  can  be  said  to  be  a  diversity  of 
opinion  on  the  subject,  is  that  the  landlord  may  in  such  ease,  at  his 
election,  relet  the  premises  upon  the  abandonment  thereof  by  the 
tenant,  in  which  case  the  measure  of  his  damage  will  be  the  agreed 
rental  less  the  amount  realized  on  account  of  such  reletting;  or  he 
may  permit  the  premises  to  remain  vacant  until  the  end  of  the  term 
and  recover  his  rent  in  accordance  with  the  terms  of  the  lease."*""  Al- 
though the  landlord  may  relet  for  the  benefit  of  the  lessee  and  on  his 
account,  without  releasing  him  from  his  undertakings,*"'^  such  acts  if 
unexplained  would  amount  to  a  surrender  by  operation  of  law,  as  in  a 
case  where  the  lessor  accepted  the  surrender.*"^  Too  much  importance 
should  not  be  attached  to  a  delivery  of  the  keys  to  the  landlord  and  his 
attempt  to  relet  the  premises.  The  legal  effect  of  these  acts  depends 
largely  on  the  intent  with  which  the  keys  were  delivered  and  for 
what  purpose  they  were  accepted.  The  landlord's  words  at  the  time  he 

*"*  Livermore  v.  Eddy,  33  Mo.  547.  Bowen    v.    Clark,    22    Ore.    566,    30 

*°*Elgutter   V.   Drishans,    44   Neb.  Pac.  430;   Meyer  v.  Smith,  33  Ark. 

378,  63  N.  W.  19.  627;  State  v.  McClay,  1  Har.   (Del.) 

"^MacKellar    v.    Sigler,    47    How.  520;  Breuckmann  v.  Twibill,  89  Pa. 

Pr.  (N.  Y.)  20.  St.    58;     Humiaton    v.    Wheeler,    70 

*»«  Merrill  v.   Willis,   51   Neb.   162,  111.  App.  349;   Auer  v.  Penn,  99  Pa. 

164,  70  N.  W.  914,  per  Post,  C.  J.;  St.  370;   Bonrdereaux  v.  Walker,  78 

citing  Hayward  v.  Ramge,  33  Neb.  111.  App.  63. 

836,    51    N.    W.    229;     Schuisler    v.  "'Brown  v.  Cairns,  63   Kan.   584, 

Ames,  16  Ala.   73;    Tully  v.  Dunn,  66   Pac.   639;    Bowen   v.   Clarke,  22 

42  Ala.  262;  Rice  v.  Dudley,  65  Ala.  Ore.    566,    30    Pac.    430;    Stewart   v. 

68;    Ledoux   v.   Jones,    20   La.   Ann.  Sprague,  71  Mich.  50,  38  N.  W.  673; 

539;    Milling  v.   Becker,  96   Pa.   St.  Biggs    v.    Stueller,    93    Md.    100,    48 

182;    Randall  v.   Thompson,   1   Tex.  Atl.  727;   Gaines  v.  McAdam,  79  111. 

App.   Civ.   Cas.,   §    1102;    Rispiui   v.  App.  201;  Scott  v.  Beecher,  91  Mich. 

Porta,  89  Cal.  464;  Underbill  v.  Col-  590,  52  N.  W.  20. 

lins,  132  N.   Y.  269,  30  N.  E.   576;  "^Witman  v.  Watry,  31  Wis.  638. 


§   550]  TEEMINATION   OP  TENANCY.  61G 

accepted  the  keys  are  good  evidence  on  this  subject.^ ''^  There  is  no 
surrender  where  landlord  refuses  to  accept  the  keys  except  on  con- 
dition that  he  is  to  find  another  tenant,  if  possible,  and  hold  the  lessee 
responsible  for  any  deficiency  in  the  rent.*"  "If  at  the  time  when  the 
keys  were  returned  to  him  the  landlord  notified  the  tenant  that  he 
received  them  under  protest,  would  re-rent  and  hold  him  for  rent,  and 
the  defendant  assented  to  such  renting,  the  presumption  which  might 
otherwise  arise  that  there  was  an  acceptance  of  the  property  would  not 
be  reasonable ;  and  if  under  such  circumstances  he  rented  the  property 
it  would  be  plain  that  he  would  do  so  for  the  lessee's  interest  and  not 
with  the  intent  of  accepting  a  surrender.  But  if  the  landlord,  without 
such  assent  on  the  part  of  the  tenant,  does  an  act,  such  as  taking  pos- 
session and  reletting  the  premises,  which  is  utterly  inconsistent  with 
the  relation  of  landlord  and  tenant,  then  a  surrender  is  implied."*^^ 
The  mere  attempt  of  the  agent  of  the  landlord  to  relet  premises  after 
an  abandonment  by  the  tenant  would  not  constitute  a  surrender  by 
operation  of  law.*^^  Taking  possession,  repairing  and  advertising  the 
house  for  rent  are  all  acts  which  may  be  in  the  interest  and  for  the 
benefit  of  the  tenant,  and  do  not  necessarily  discharge  him  from  his 
covenant  to  pay  rent.*^'  In  Texas  it  has  been  held  that  where  a  land- 
lord relets  premises  for  the  benefit  of  a  former  tenant,  he  recovers  the 
amount  lost  by  the  change  of  tenants  not  as  rent  but  as  damages  for  the 
injury  done  him  by  the  tenant  in  abandoning  the  premises.*^* 

An  agreement  between  a  lessor  and  lessee  that  the  former  should 
take  possession  of  the  premises  and  relet  them  for  the  benefit  of  the 
lessee  was  held  not  to  discharge  sureties  who  had  bound  themselves 
for  the  payment  of  the  agreed  rent.  This  was  no  more  than  a  consent 
that  the  lessor  might  relet,  even  though  the  lessee  delivered  over  his 
keys  to  the  lessor.*^^ 

§  550.  It  is  essential  that  the  landlord  notify  his  tenant  that  his 
responsibility  for  the  deficiency  in  rent  will  continue.  So,  where  the 
tenant  on  leaving  recognized  the  lease  and  offered  to  surrender,  and 
the  landlord  entered  and  relet  without  notice  to  the  former  lessee,  this 

^"^  Bowen  v.   Clarke,   22   Ore.   566,  "=  Gaines  v.  McAdam,  79  111.  App. 

30  Pac.  430.  201. 

""  Stewart   v.    Sprague,    71    Mich.  *"  Breuckmann  v.  Twibill,  89  Pa. 

50,  38  N.  W.  673.  St.  58. 

*"  Biggs   v.    Stueler,    93    Md.    100,  "*  Randall    v.    Thompson,    1    Tex. 

48  Atl.  727,  per  Page,  J.,  citing  Kin-  App.  Civ.  Cas.,  §  1102. 

sey  V.  Minnick,  43  Md.  112.  '"*  Morgan  v.  Smith,  70  N.  Y.  537. 


617  SURRENDER.  [§    551 

operated  as  a  surrender  by  operation  of  law.**®  It  is  to  be  presumed  that 
the  landlord  has  given  up  all  hope  to  hold  the  tenant  for  the  balance  of 
rent  when  he  enters  into  possession  and  deals  with  the  property  as  an 
owner.**''  So  where  a  tenant  voluntarily  vacated  the  premises  before 
the  expiration  of  the  term  and  delivered  the  keys  to  the  landlord  at  the 
latter's  request,  who  retained  them  and  during  the  term  advertised 
the  premises  for  rent,  an  implied  surrender  arose  by  operation  of 
law.**®  Eeletting  premises  for  a  longer  term  than  the  original  demise, 
without  notifying  lessees  that  it  is  done  on  their  account,  has  been  held 
to  show  an  acceptance  of  a  surrender  by  operation  of  law.**^  In  case 
there  is  nothing  to  indicate  a  purpose  on  the  part  of  the  landlord  in  re- 
suming possession  to  hold  the  tenant  liable  for  rent  or  to  lease  to  others, 
on  account  of  the  tenant,  he  merely  accepts  the  abandonment  as  a  sur- 
render of  the  leasehold  interests  and  thereby  puts  an  end  to  the  con- 
tract.*^°  An  action  for  rents  to  accrue  after  an  abandonment  suf- 
ficiently indicates  an  intention  on  the  part  of  the  landlord  not  to  ac- 
cept a  surrender.*^* 

In  one  jurisdiction  the  distinction  has  been  drawn  between  a  case 
where  the  landlord  and  tenant  had  a  conversation  in  which  the  land- 
lord refused  to  accept  a  surrender  and  told  the  tenant  he  would  relet 
the  premises  for  his  benefit*^^  and  a  case  where  the  landlord  wrote  the 
tenant  to  that  effect. *^^  In  the  former  case  there  was  no  surrender, 
while  in  the  latter  there  was.  The  failure  of  the  tenant  to  answer  the 
letters  did  not  show  his  acquiescence  to  the  proposal  of  the  land- 
lord. The  court  say:  "It  is  clear,  both  on  principle  and  authority, 
that  we  have  no  right  to  indulge  in  the  assumption  that  the  letters 
above  referred  to  have  the  force  and  effect  of  verbal  statements.  .  .  ." 

§  551.  Consent  of  tenant  implied. — Strictly  speaking,  where  a, 
tenant  abandons  the  premises  leased,  before  the  expiration  of  the 
term,  the  landlord  is  at  liberty  to  pursue  either  of  two  courses.  He 
may  suffer  the  premises  to  remain  vacant  and  sue  on  the  contract  of 
renting,  or  he  may  enter  and  determine  the  contract,  claiming  the 
rent  due  up  to  the  time  of  abandonment.    The  landlord  cannot  take 

"°  Williamson  v.  Crossett,  62  Ark.  Pork   Co.,  116   Iowa   723,  89   N.  W. 

393,  36  S.  W.  27.  196. 

"'Palmer  v.  Meyers,  79  111.  App.  "^  Martin  v.  Stearns,  52  Iowa  345, 

409.  3  N.  W.  92. 

"^Ledsinger  v.  Burke,  113  Ga.  74,  ^"Underbill  v.  Collins,  132  N.  Y. 

38  S.  E.  313.  270,  30  N.  E.  576. 

"'Welcome  v.   Hess,   90   Cal.  507,  *=^  Gray  v.   Kaufman  &c.   Co.,  162 

27  Pac.  369.  N.  Y.  388,  56  N.  E.  903,  reversing  16 

*^°  Armour  &c.  Co.  v.  Des  Moines  App.  Div.  631. 


§§    552,    553]  TERMINATION    OF   TENANCY.  618 

possession  of  the  premises  and  insist,  at  the  same  time,  that  the  con- 
tract of  renting  is  in  force  without  the  consent,  express  or  implied,  of 
the  tenant.  For  the  landlord  to  enter  the  leased  premises  in  his  own' 
right  during  the  term  would  constitute  an  eviction  and  suspend  the 
tenant's  liability  for  rent.  But  the  landlord  may  enter  as  the  agent 
of  tenant,  and  such  a  presumption  is  in  conformity  with  the  policy 
of  the  law,  to  prevent  loss  and  reduce  the  damage  recoverable  for 
breach  of  contract.  Slight  acts  will  justify  an  inference  of  the  ten- 
ant's assent.*^* 

§  552.  Rights  of  sub-tenants. — It  is  generally  true  that  the  sur- 
render of  his  lease  by  a  tenant  will  not  divest  his  sub-tenants  of  their 
rights.*^^  Where  a  tenant  under  a  lease  containing  no  restriction 
upon  sub-letting  sub-lets  a  portion  of  the  premises,  and  subsequently, 
without  the  knowledge  or  assent  of  the  sub-tenant,  surrenders  his 
term  to  the  owner,  such  surrender  and  the  consequent  merger  of  the 
greater  and  lesser  interest  terminate  the  original  lease  and  the  term 
created  thereby,  as  between  the  original  parties  to  the  lease  and 
surrender.  But  the  interest  and  the  terms  of  the  sub-tenant  continue 
as  if  no  surrender  had  been  made.*^^ 

§553.  The  question  whether  negotiations  and  circumstances 
amounted  to  a  surrender  by  operation  of  law  is  properly  one  to  be 
decided  by  the  jury.*-^  A  surrender  may  be  inferred  from  acts  show- 
ing an  agreement  between  the  parties  to  that  effect.*^ ^    There  is  a 

*^Rice    V.    Dudley,    65    Ala.    68;  paid  by  Mrs.  Cooper,  as  that  fact 

Crommelin  v.   Thiess,  31  Ala.  412;  is  not  negatived  by  the  report.     If 

Schuisler  v.  Ames,  16  Ala.  73.     The  Rich  Is  not  to  be  considered  as  the 

comment  of  the  court  is  interesting  agent   of   Randall   in    putting   Mrs. 

in  an  early  case  of  a  releting  by  the  Cooper  into  the  premises,  that  act 

landlord  after  the  tenant's  abandon-  may  well  be  considered  as  an  ouster 

ment;    Chief   Justice   Parker   said:  of  Randall;  and  so  the  lease  would 

"For  the  true  intention  of  the  par-  be  discharged  from  that  time.    Ran- 

ties  to  the  transaction  may  be  well  dall  v.  Rich,  11  Mass.  494,  496. 

enforced  by  admitting  that  the  con-  ■'-^  McKenzie  v.  City  of  Lexington, 

tract   was  in   force   even   after  the  4  Dana  (Ky.)  129.    See  §  429. 

delivery  of  the  key;   and  that  Rich  '='' Eten  v.  Luyster,  60  N.  Y.  252. 

then  consented  to  become  the  agent  See  §  659. 

of  Randall  in  procuring  a  new  ten-  *^^  Youell    v.    Kridler,    105    Mich, 

ant,  and  to  be  responsible  for  the  344,   63  N.  W.  439;    Dobbin  v.  Mc- 

rent  as  he  undoubtedly  ought  to  be  Donald,  60  Minn.  380,  62  N.  W.  437. 

under   these   circumstances,   having  "*  Ruling    v.    Roll,    43    Mo.    App. 

put  the  new  tenant  in  without  con-  234;   Churchill  v.  Lammers,  60  Mo. 

suiting  Randall.     Indeed,  it  is  to  be  App.  244.                                      . 
presumed   that   the    rent   has    been 


I 


G19  RESTORATION"    OF    POSSESSION    TO    LANDLORD.  [§    554 

distinction,  however,  between  surrenders  during  and  those  at  the  end 
of  a  term.  In  the  surrender  of  the  residue  of  an  existing  term  by 
operation  of  law  no  acts  of  the  parties  will  amount  to  a  surrender 
uiiless  the  landlord's  assent  to  a  surrender  is  clearly  inferable  there- 
from. But  at  the  expiration  of  a  term  any  act  on  the  part  of  the 
tenant  clearly  indicative  that  he  has  finally  vacated  the  premises  is 
sufficient.^^^  Leaving  a  key  to  demised  premises  with  the  landlord 
has  been  said  to  be  a  continuing  offer  on  the  part  of  the  tenants ;  and 
as  soon  as  the  landlord  did  an  act  which  would  have  constituted  him 
a  trespasser  if  he  had  not  exercised  the  option  thus  given  to  him,  that 
afforded  ground  for  the  inference  that  he  assented  to  the  tenancy  be- 
ing put  an  end  to.  His  taking  the  key  and  showing  the  premises 
with  a  view  to  letting  them  would  also  be  evidence  of  an  election  on 
his  part  to  assent  to  the  proposal  of  the  tenants.*^"  An  oral  agree- 
ment, contemporaneous  with  the  making  of  a  lease,  to  the  effect  that 
the  lessee  might  surrender  the  premises  at  any  time,  may  be  shown 
as  throwing  light  on  the  acts  of  the  lessor  when  the  lessee  does  leave 
during  the  term.*^^  The  jury  were  held  to  be  justified  in  finding 
that  a  tenant  had  surrendered  his  interest  in  a  lease  when  he  knew  of 
a  sale  of  the  premises  and,  after  a  demand  that  he  move,  he  gave  up 
control  of  the  property  and  offered  to  do  work  around  the  place  in 
consideration  of  the  use  of  the  dwelling  house.^^^  The  burden  of 
showing  a  surrender  of  a  lease  by  operation  of  law  by  some  act  im- 
plying an  agreement  by  both  parties  to  consider  the  lease  surrendered 
rests  upon  the  party  asserting  it.*^^ 

V.    Restoration  of  Possession  to  Landlord. 

§  554.  Duty  of  tenant  to  yield  up  possession. — It  is  a  common 
provision  in  leases  for  a  lessee  to  covenant  to  surrender  possession  at 
the  end  of  the  term.  Such  an  undertaking  is  valid,  and  for  breach  of 
it  the  lessor  would  have  an  action  for  damages,  but  the  duty  of  the 
lessee  does  not  rest  alone  on  such  an  agreement.  On  the  expiration 
of  the  term  a  lessee's  rights  in  the  premises  cease  and  he  is  bound  to 
vacate  them  and  yield  up  possession  to  the  owner  of  the  fee  without 
binding  himself  expressly  to  do  so.*^*   Furthermore  a  lessee  may  bind 

"'  Mitchell    V.    Blossom,    24    Mo.  "=  Hart  v.  Pratt,  19  Wash.  560,  53 

App.  48.  Pac.  711. 

^'''Phene   v.    Popplewell,   12   C.    B.  "'Churchill   v.   Lammers,   60   Mo. 

(N.  S.)  334,  104  E.  C.  L.  334.  App.  244. 

*"  McGlynn    v.    Brock,    111    Mass.  "^  A  covenant  by  the  landlord  to 

219.  renew  the  lease  does  not  give  the 


§    554]  TERMINATION    OF   TENANCY.  620  ■ 

himself  by  an  agreement  to  so  vacate  premises  before  the  end  of  his 
term.  On  a  sale  of  premises  at  auction,  the  purchaser  bought  in  re- 
liance on  a  tenant's  agreement  to  deliver  up  possession  by  a  certain 
date,  and  the  court  held  that  this  agreement  was  supported  by  a  valid 
consideration  and  that  an  action  on  the  case  could  be  maintained 
against  the  tenant  for  failure  to  keep  his  agreement.* ^°  The  duty  of 
a  tenant  to  yield  up  possession  is  clearly  laid  down  by  Lord  Kenyon : 
"When  a  lease  is  expired  the  tenant's  responsibility  is  not  at  an  end, 
for  if  the  premises  are  in  the  possession  of  an  undertenant  the  land- 
lord may  refuse  to  accept  the  possession  and  hold  the  original  lessee 
liable,  for  the  lessor  is  entitled  to  receive  the  absolute  possession 
at  the  end  of  the  term.  But  it  may  be  proved  that  the  lessor  has  ac- 
cepted the  undertenant  as  his  tenant."*^®  Where  a  tenant  has  sub-let 
the  whole  or  any  part  of  the  leased  premises,  and  the  sub-tenant  is 
in  possession  at  the  termination  of  the  original  lease,  the  tenant  must 
remove  him,  otherwise  he  will  not  be  in  a  situation  to  render  that 
complete  possession  to  which  the  landlord  is  entitled;  and  unless  the 
entire  possession  is  surrendered  the  responsibility  of  the  tenant  for 
rent  will  continue,  although  it  may  have  been  impossible  for  him,  in 
consequence  of  the  obstinacy  or  ill  will  of  the  sub-tenant,  and  his 
refusal  to  quit,  to  give  the  landlord  full  possession. *^^  When  a  lessee 
puts  another  into  possession  of  demised  premises  who  holds  over,  it 
is  considered  in  law  as  the  holding  over  of  the  lessee.*^^  So  if  a  lessee 
does  an  act  of  ownership,  as  where  he  attempts  to  collect  rent  from  his 
undertenant  after  the  end  of  the  term,  he  is  liable  to  the  original 
landlord  for  rent  during  the  period  of  the  undertenant's  holding 
Qygj._439  Obviously  a  lessee  cannot  say  to  his  landlord:  "Though  I 
kept  you  out  of  possession,  I  did  so  not  by  holding  myself,  but  by 
surrendering  the  premises  before  my  term  expired  to  another,  through 
whom  I  held  over."  The  vacation  of  the  premises  by  the  termor  must 
be  unequivocal,  and  the  exact  means  by  which  he  accomplishes  his 
holding  over  is  immaterial.  If  against  the  landlord's  consent,  the 
premises  are,  through  the  action  of  the  tenant,  kept  out  of  the  land- 
tenant  the  right  at  law  to  retain  Bergen,  12  Allen  (Mass.)  551;  Bless 
possession  of  the  premises  after  v.  Jenkins,  129  Mo.  647,  31  S.  W. 
the  expiration  of  the  original  term.  938;  Brewer  v.  Knapp,  1  Pick. 
The  tenant  only  has  a  remedy  in  (Mass.)  332;  Lubetkin  v.  Elias  &c. 
equity  or  in  an  action  on  the  cove-  Co.,  21  Abb.  N.  C.  (N.  Y.)  304. 
nant.    Finney  v.  Cist,  34  Mo.  303.  *'«  Brewer     v.     Knapp,     1     Pick. 

*^  Moore  v.  Davis,  49  N.  H.  45.  (Mass.)    332;    Dimock   v.   Van   Ber- 

"' Harding  v.  Crethorn,  1  Esp.  57.     gen,  12  Allen  (Mass.)  551. 
*^'  Campau  v.  Mitchell,  103  Mich.         "'  Ibbs  v.  Richardson,  9  A.  &  E. 
617,  61  N.  W.  890;    Dimock  v.  Van     849;  Waring  v.  King,  8  M.  &  W.  571. 


621  KESTORATION   OF   POSSESSION   TO   LANDLORD.  [§    555 

lord's  possession,  it  constitutes  a  holding  over  and  subjects  the  ten- 
ant to  any  penalty  imposed  by  the  lease.***'  But  it  has  been  decided 
that  the  mere  fact  that  a  tenant  remains  in  possession  after  the  ex- 
piration of  his  lease  caiinot  be  construed  into  a  refusal  to  deliver 
possession,  so  as  to  bring  the  case  within  the  statutory  provision  im- 
posing a  penalty  of  double  rent  for  a  refusal  to  deliver  possession 
when  the  term  expires.  There  must  be  some  evidence  of  a  demand 
and  refusal  to  restore  the  possession  of  the  premises  after  the  termi- 
nation of  the  lease  to  make  the  lessee  liable  to  the  penalty.**^  On 
the  close  of  the  term  it  is  not  the  duty  of  the  lessee  to  leave  the  de- 
mised house  unoccupied  without  demand  or  expressed  readiness  for 
possession  by  the  lessors,  nor  would  such  dereliction  be  proper.  There 
is,  therefore,  no  breach  of  a  covenant  to  return  in  retaining  posses- 
sion afterwards,  as  the  tenant  does  so  with  the  presumed  consent  of 
the  landlord ;  and  consequently  a  petition,  in  not  averring  the  fact  of 
demand  or  manifested  readiness  to  receive  possession,  fails  to  show  a 
good  cause  of  action  for  an  alleged  breach  of  a  covenant  to  return.**^ 

§  555.  It  often  happens  that  a  tenant  who  Intends  to  quit  at  the 
end  of  his  term  is  not  able  to  complete  his  arrangements  promptly, 
and  desires  to  remain  a  short  time  after  the  term  has  expired.  It 
is  often  convenient  for  the  landlord  to  permit  him  to  do  so,  pro- 
vided he  acquires  no  rights  thereby  and  can  be  turned  out  without 
notice.  A  covenant  for  the  payment  of  rent  during  such  holding  over 
prevents  all  dispute  in  respect  to  that  matter  and  the  landlord  may 
forbear  to  exercise  his  rights  without  losing  them.**^  A  mere  con- 
tinuance in  possession  after  the  expiration  of  a  lease  makes  a  party  a 
tenant  at  sufferance,  but  if  a  new  contract  is  shown,  either  express  or 
inferable  from  the  dealings  of  the  parties,  the  estate  becomes  one  at 
will,  and  a  new  contract  may  be  inferred  from  an  agreement  for  a  new 
lease.***  A  tenant  remaining  in  possession  pending  a  treaty  for  a  new 
lease  cannot  be  treated  as  a  trespasser,**^  nor  can  he  be  held  as  a  tenant 
for  another  year.**®    On  the  other  hand,  a  tenant  holding  over  after 

""Kerr  v.   Simmons,   8   Mo.   App.  367;     Edwards    v.     Hale,    9    Allen 

431.  (Mass.)    462;    Kendall  v.  Moore,  30 

"^  Shepperd  v.  Thompson,  2  Bush  Me.  327;  Amsden  v.  Atwood,  67  Vt. 

(Ky.)    176;    Thompson  v.  Marsh,  4  289,  31  Atl.  448. 

Bush  (Ky.)  423.  "'^  Drake  v.  Wilhelm,  109  N.  Car. 

"=Kyle  V.  Proctor,  7  Bush    (Ky.)  97,  13  S.  E.  891;   Schilling  v.  Klein, 

493,  per  Robertson,  J.  41    111.  App.   209;    Hollingsworth  v. 

"'Edwards     v.      Hale,      9      Allen  Stennett,  2  Esp.  717. 

(Mass.)   462.  ""Drake  v.  Wilhelm,  109  N.  Car. 

"'Emmons  v.  Scudder,  115  Mass.  97,  13  S.  E.  891. 


§■  555]  TERMINATION    OF    TENANCY.  622 

the  expiration  of  his  term  does  not  become  a  tenant  at  will  without  the 
assent  of  his  landlord.**^  However,  where  a  possession  commenced 
rightfully,  and  with  the  consent  of  the  owner,  nothing  is  to  be  pre- 
sumed to  make  it  adverse.  Mere  holding  over,  after  the  term  ended, 
is  not  evidence  of  an  adverse  possession,  and  the  possessor  will  be 
regarded  as  a  tenant  at  will  of  the  landlord  unless  he  can  show  that 
since  the  expiration  of  the  lease  he  has  held  forcibly  or  has  acquired  a 
title  paramount  to  that  under  which  possession  was  originally  taken.'*** 
So  far  as  tenants,  by  any  act  of  their  own,  leave  premises  in  an  un- 
tenantable condition,  they  are  liable  to  the  extent  of  the  injury  in  a 
special  action  adapted  to  the  facts  of  the  case;  but  the  leaving  of 
bulky  articles,  such  as  a  cargo  of  ashes  on  a  wharf,  does  not  consti- 
tute a  continued  use  and  occupation  of  the  premises  so  as  to  amount 
to  a  waiver  of  a  notice  to  terminate  the  estate;**^  and  the  leaving  of 
ashes,  brickbats  and  rubbish  by  a  tenant  on  quitting  demised  premises 
has  been  held  to  be  no  breach  of  his  agreement  peaceably  to  yield  up 
the  premises  in  good  tenantable  repair.*^** 

In  the  absence  of  a  different  rule,  created  by  statute  or  by  express 
contract,  where  a  tenant  holds  over  after  the  expiration  of  a  written 
lease,  the  law  implies  that  he  holds  over  subject  to  the  terms  of  the 
previous  lease  so  far  as  they  are  applicable  to  a  periodic  holding.*^^ 
The  rights  and  duties  of  the  parties  are  controlled  by  the  contract 
under  which  the  entry  was  made.*^^  A  notice  to  a  tenant  that  he 
must  pay  an  increased  rent  if  he  holds  over  is  usually  held  to  be 
accepted  by  the  tenant's  continuance  in  possession.^^^  If  a  tenant  has 
not  surrendered  premises  or  been  evicted  by  paramount  title,  but  re- 
mains in  occupation  after  the  termination  of  his  lease,  his  tenancy 
must  be  regarded  as  continuing,  and  he  is  liable  for  rent  and  is 
estopped  to  deny  the  title  of  his  landlord.*^*  Where  a  tenant  holds 
over  with  the  tacit  consent  of  his  landlord  a  tenancy  from  year  to 
year  is  created;  the  tenant  is  liable  for  rent  at  the  rate  reserved  in 
the  lease  and  the  landlord  cannot  evict  him  during  the  middle  of  the 

«^  Kellogg  V.  Groves,  53  Iowa  395,  Ridgely,    19    111.    App.    306;    §    201, 

5  N.  W.  517.  supra. 

"« Gwynn    v.    Jones,    2    Gill    &    J.  *"  Harry  v.  Harry,  127  Ind.  91,  26 

(Md.)   173.  N.  E.  562. 

"'Wilson  v.  Prescott,  62  Me.  115.  *"  Despard  v.  Walbridge,  15  N.  Y. 

^'^  Thorndike      v.      Burrage,      111  374,   §   213,  supra.    See  Lantman  v. 

Mass.  531.  Miller,  158  Ind.  382,  63  N.  E.  7G1. 

'"Haeussler   v.    Holman   &c.    Co.,  «*  Towne  v.  Butterfield,  97  Mass. 

49  Mo.  App.  631;    Harry  v.  Harry,  105;    Longfellow  v.   Longfellow,   54 

127  Ind.  91,  26  N.  E.  562;   Miller  v.  Me.  240;  Love  v.  Law,  57  Miss.  596; 

Bonney  v.  Foss,  62  Me.  248. 


623  EESTOEATION   OF  POSSESSION"   TO    L.^'DLOKD.  [§    555 

year.*^^  The  tenant  can  be  held  for  a  full  year's  rent  by  reason  of  his 
holding  over  in  spite  of  his  previous  notice  that  the  premises  were 
not  wanted  for  another  year/^®  and  this,  too,  although  the  rent  re- 
served was  payable  in  monthly  instalments.*^'^  But  if  a  tenant  va- 
cates promptly,  his  mere  failure  to  return  the  keys  of  the  leased 
house  for  a  few  days,  does  not  furnish  a  foundation  for  an  inference 
of  an  implied  renting  for  another  month.*^^  However,  an  attempted 
surrender  of  keys  is  unavailing  where  the  tenant  uses  a  portion  of  the 
premises  to  store  goods  on  and  loads  goods  on  the  premises;  under 
such  circumstances  the  landlord  has  an  election  to  treat  the  lessee  as 
tenant  for  another  year.*^^ 

The  possession  of  vacant  premises  could  not  exist  after  a  notice  that 
they  had  been  vacated,  except  through  some  positive  acts  equivalent 
to  a  reentry  or  the  exclusion  of  any  other  possession.  Leaving  a  log 
boom  along  a  water  front,  which  could  be  removed  by  any  one,  would 
be  no  more  significant  as  an  act  of  possession  than  leaving  a  fence  on 
land  which  was  unfenced  when  a  lease  commenced.  Passing  logs 
into' the  boom  cannot  be  considered  as  possessory.  They  differ  in  no 
respect  from  driving  a  loaded  wagon  upon  a  vacant  lot  to  discharge  its 
load  upon  an  adjoining  enclosure.**'^  The  tenancy  was  not  continued 
for  another  term  where  the  tenant  by  his  landlord's  consent  left  certain 
articles  of  property  in  the  house  ;*®^  or  where  a  small  quantity  of  coal 
was  left  in  bins;**'^  or  where  improvements  were  left  on  premises 
pending  a  settlement  of  their  value  by  appraisal.  Without  any  pro- 
vision as  to  paying  for  improvements,  the  tenant  would  be  entitled 
to  a  reasonable  time  for  removing  them  after  the  expiration  of  the 
lease.  Under  provisions  as  to  settling  the  amount  to  be  paid,  if 
the  tenant  was  not  in  fault  for  delay  in  trying  to  agree,  he  would 
be  entitled  to  a  reasonable  time  for  removal  after  there  was  a  dis- 
agreement.*"^ After  the  termination  of  a  tenancy,  however,  the 
tenant  is  not  justified  in  refusing  to  deliver  up  possession  because  the 

*=' Usher   v.    Moss,    50    Miss.    208;  '^^  Cavanaugh    v.    Clinch,    88    Ga. 

Love  V.  Law,  57  Miss.  596.  610,  15  S.  E.  673. 

«' Smith  V.  Bell,  44  Minn.  524,  47  ^'o  Thomas  v.  Frost,  29  Mich.  336. 

N.  W.  263.  ""  Blackwood  v.  Tanner,  54  Minn. 

*"  Intfen   v.   Foster,    8   Kan.    App.  349,  56  N.  W.  45. 

336,  56  Pac.  1125;   Smith  v.  Bell,  44  «=  Steen  v.  Scheel,  46  Neb.  252,  64 

Minn.  524,  47  N.  W.  263.  N.  W.  957. 

"'  Neumeister    v.    Palmer,    8    Mo.  ^^  Vorse   v.    Des    Moines   &c.    Co., 

App.  491;   Waring  v.  King,  8  M.  &  104  Iowa  541,  73  N.  W.  1064;  Smith 

W.  571,  574.  V.  Park,  31  Minn.  70,  16  N.  W.  490; 

Sullivan  v.  Carberry,  67  Me.  531. 


§    556]  TERMINATION   OF   TENANCY.  624 

landlord  is  indebted  to  him  for  improvements.*^*  Where  a  lease  pro- 
vided for  appraisal  of  improvements  within  thirty  days  of  its  expira- 
tion and  that  they  should  be  a  lien  on  the  premises  till  the  amount 
determined  should  be  paid,  it  was  held  that  the  lessee  was  not  en- 
titled to  remain  in  possession  till  the  appraisal  was  completed  or  any 
time  at  all  after  the  end  of  the  term.*^^  Although  a  tenant  is  entitled 
to  remove  improvements,  no  injustice  is  done  in  requiring  him  to  sur- 
render the  possession  of  the  premises  on  the  expiration  of  the  lease, 
subject  to  his  right  of  ingress  and  egress  to  remove  improvements,"^ 
But  where  a  lessee  agreed  on  being  paid  for  improvements  to  yield 
up  the  demised  premises,  an  agreement  may  be  implied  that  he 
should  retain  possession  till  payment  was  made,  although  the  terms 
may  have  expired.*"  But  if  a  tenant  holds  a  mortgage  on  the  demised 
premises  which  falls  due  at  the  expiration  of  the  term  of  the  lease, 
the  lessee  may  continue  to  hold  possession  as  mortgagee  even  though 
he  has  covenanted  in  his  lease  to  deliver  up  possession  at  the  end  of 
the  term.***® 

The  consent  of  a  landlord  to  his  tenant's  holding  over  is  a  defense 
to  an  action  for  damage  for  loss  of  another  tenant  caused  by  such  hold- 
ing over.*''^ 

§  556.  As  the  law  stood  before  modified  by  statute,  a  wide  scope 
of  action  was  allowed  to  an  owner  in  using  force  to  recover  possession 
of  his  property.  Thus,  Lord  Bacon  lays  it  down  that  "At  common  law, 
if  a  man  had  a  right  of  reentry  in  him,  he  was  permitted  to  enter  with 
force  and  arms,  and  to  detain  his  possession  by  force,  where  his  entry 
was  lawful.''*^"  But  this  right  must  be  exercised  under  certain  lim- 
itations,*^^ and  there  can  be  no  doubt  that  an  unlawful  entry  with 
force  was  an  offense  at  common  law  for  which  an  indictment  would 
lie,  provided  the  indictment  charged  the  defendants  with  having  used 
such  force  as  constituted  a  breach  of  the  public  peace.*"     At  any 

*"Speers   v.    Flack,   34    Mo.    101;  *""  Sloat  v.   Rountree,   87  Ga.  470, 

Allison  V.  Thompson,  1  Litt.   (Ky.)  13  S.  E.  637. 

31;  Elliott  v.  Round  Mountain  Coal  ^'^  Bacon  Abr.  Tit.  Forcible  Entry 

&  Iron  Co.,  108  Ala.  640,  18  So.  689.  and  Detainer. 

^'^Bresler     v.     Darmstaetter,     57  ^'^  Bract.  162,  163. 

Mich.  311,  23  N.  W.  825.  ""Rex  v.  Bathhurst,  Say.  225;  Rex 

"""Caperton  v.   Stege,  91  Ky.  351,  v.  Storr,  3  Burr.  1698;  Rex  v.  Bake, 

15  S.  W.  870,  16  S.  W.  84.  3  Burr.  1731.     In  volume  four,  sec- 

^'Van  Rensselaer  v.  Penniman,  6  tion     148,     of     his     Commentaries, 

Wend.  (N.  Y.)  569.  Blackstone  says  of  the  common-law 

«*  Shields  v.   Lozear,  34  N.  J.  L.  right  of  forcible  entry:     "But  this 

496.  being  found  very  prejudicial  to  the 


635  RESTORATION   OF   POSSESSION   TO   LANDLORD.  [§'   556 

rate,  the  law,  as  it  stood,  created  a  great  inconvenience  by  encourag- 
ing the  mischief  of  forcible  entry  and  giving  an  opportunity  to  power- 
ful men,  under  the  pretense  of  feigned  titles,  forcibly  to  eject  their 
weaker  neighbors.  This  inconvenience  led  to  the  passing  of  a  series 
of  acts  forbidding  entry  with  a  strong  hand  and  the  retaining  of 
possession,  peaceably  acquired,  by  force,  and  providing  for  criminal 
responsibilities  for  disobedience  to  these  provisions.  An  indictment 
for  forcible  entry  may  still  be  maintained  at  common  law,  though  the 
statutes  give  other  remedies  to  the  party  aggrieved,  provided  the 
indictment  charge  the  defendants  with,  having  used  such  force  as  con- 
stitutes a  public  breach  of  the  peace.  "But  there  is  no  doubt,"  says 
Lord  Kenyon,  'Ijut  that  the  offense  of  forcible  entry  is  indictable  at 
common  law,  though  the  statutes  give  other  remedies  to  the  party 
grieved,  restitution  and  damages;  and  therefore  in  an  indictment  on 
the  statutes  it  is  necessary  to  state  the  interest  of  the  prosecutor ;  but 
I  do  not  know  that  it  has  ever  been  decided  that  it  is  necessary  to 
allege  a  greater  degree  of  force  in  an  indictment  at  common  law  for 
a  forcible  entry  than  in  an  indictment  on  the  statutes.  .  .  .  It  is 
alleged  that  twelve  persons  with  force  and  arms  and  with  a  strong 
hand  violently  entered  into  a  certain  mill  and  lands  and  houses  and 
expelled  the  prosecutor;  whether  or  not  these  facts  will  be  proved  is 
another  question;  but  if  they  be  proved  as  laid,  God  forbid  that  it 
should  not  be  an  indictable  offense  !"*^^ 

By  the  principles  of  the  common  law,  some  degree  of  force  is  allowed 
in  expelling  an  intruder  into  a  man's  lands  or  tenements,  who  refuses 
to  quit,  although  he  has  no  right  to  the  possession.  The  owner  is  not 
justified  to  use  such  a  degree  of  force,  as  would  tend  to  a  breach  of 
the  peace,  but  he  is  allowed  to  use  such  force  as  would  sustain  a 
plea  of  justification  of  molliter  mantis  imposuit.'^''*  A  landlord, 
having  the  right  of  immediate  possession,  may  take  it  without  legal 
process  if  he  can  do  so  peaceably ;  but  he  has  no  right  forcibly  to  re- 
move his  tenant's  goods  or  commit  an  assault  on  him  in  so  doing.  If 
he  does  he  is  liable  criminally.'*'^^ 

public  peace,  it  was  thought  neces-  maintained    with    force,    with    vio- 

sary  by  several  statutes  to  restrain  lence,  and  with  unusual  weapons." 
all  persons  from  the  use  of  such  *"  Rex  v.  Wilson,  8  Term  R.  357. 
violent  methods,  even  of  doing  them-        '''  Fifty  Associates  v.  Howland,  5 

selves   justice,   and    much    more   if  Cush.  (Mass.)  214;  Spencer  v.  Com- 

they  had  no  justice  in  their  claim,  mercial  Co.,  30  Wash.  520,  71  Pac. 

So  that  the  entry  now  allowed  by  53. 

law  is  a  peaceable  one;  that  forbid-        "''Commonwealth  v.  Haley,  4  Al- 

den   is  such   as   is   carried   on   and  len  (Mass.)   318. 

Jones  L  &  T.~4(? 


§    557]  TERMINATION  OF  TENANCY.  626 

It  is  the  object  of  the  statutes  relative  to  forcible  entry  and  de- 
tainer not  only  to  prevent  and  punish  the  forcible  entry  of  those 
having  no  right  of  entry,  but  also  of  those  who,  having  a  right  of 
entry  given  by  law,  make  entry  "with  strong  hand,'^  or  "with  multi- 
tude of  people."  The  right  to  the  possession  of  the  premises  is  not 
in  issue  in  an  action  for  forcible  entry  and  unlawful  detainer.  If  it 
be  found  that  at  the  time  of  the  alleged  forcible  entry  the  plaintiff 
had  the  actual  and  peaceable  possession  and  the  defendants  unlawfully 
detained  the  premises,  the  plaintiff  is  entitle  to  recover  rents  and 
profits  during  the  time  of  the. unlawful  detainer.^^^ 

A  tenant  peaceably  in  possession,  who  uses  no  force  and  threatens 
none,  but  refuses  to  leave  until  obliged  to  by  law,  is  not  guilty  of  a 
forcible  detainer  of  the  leased  premises.*^^  But  it  has  been  held  that 
a  landlord  may  by  force  eject  a  tenant  who,  after  the  termination  of 
his  tenancy,  retains  possession  of  the  tenement,  and  that,  in  such  a 
case,  the  only  question  of  importance  as  to  the  tenancy  is  whether  it 
has  or  has  not  in  fact  terminated.  The  tenant's  good  faith,  or  belief 
in  a  right  to  retain  possession  is  immaterial.  There  is  no  distinction 
between  an  undoubted  trespasser  and  one  who  holds  possession  under 
a  color  and  reasonable  claim  of  right,  which  changes  the  legal  aspect 
of  the  case.  The  tenant  is  either  a  trespasser  or  he  is  not.  If  he  is, 
neither  his  belief  that  he  is  not  nor  the  fact  that  he  holds  "under  a 
color  and  reasonable  claim  of  right"  is  of  any  importance.  If  this 
were  not  so,  it  would  be  in  the  power  of  any  one  in  the  wrongful 
possession  of  real  estate  who  believes  his  possession  to  be  rightful,  to 
compel  the  person  who  is  legally  entitled  to  possession  to  resort  to 
an  action  at  law  to  recover  it,  thus  nullifying  the  right  of  the  owner 
to  expel  the  trespasser.*^* 

§  557.  A  forcible  entry,  within  the  meaning  of  the  forcible  entry 
and  detainer  act,  is  one  accompanied  with  some  circumstance  of  force 
or  violence  to  the  person,  or  one  accomplished  in  a  riotous  or  tumul- 
tuous manner  endangering  the  public  peace.  An  entry  which  has  no 
other  force  than  that  implied  in  every  trespass  is  not  within  the 
statute.*^®     The  word  "force"  as  here  used,  means  "actual  force"  as 

*^«Roff  V.  Duane,  27  Cal.  565,  570.  Me.  546,  550;  Willard  v.  Warren,  17 

*"Appleton  V.   Buskirk,  67   Mich.  Wend.   (N.  Y.)   257;   Foster  v.  Kel-| 

407,  34  N.  W.  708.  sey,  36  Vt.  199,  201,  84  Am.  D.  676; 

"« Allen  V.  Kelly,  17  R.  I.  731,  24  Evill  v.   Conwell,   2   Blackf.    (Ind.) 

Atl.  776.  133,  18  Am.  D.  138;  Smith  v.  Detroit. 

«» Smith  V.   Reeder,   21   Ore.   541,  &c.  Ass'n,  115  Mich.  340,  73  N.  W., 

28  Pac.  890;  Dunning  v.  Finson,  46  395. 


627  RESTORATION   OF   POSSESSION   TO   LANDLORD.  [§    558 

contradistinguished  from  "implied  force."  Any  entry  requires  force, 
in  the  literal  sense  of  the  term,  but  that  could  not  have  been  meant 
by  the  statute,  for  it  would  involve  an  absurdity.  ISTor  does  it  mean 
that  force  which  the  law  implies  where  a  peaceable  entry  is  made  by 
one  having  no  right  to  enter.  The  conclusion  may  therefore  be  drawn 
that  the  force  which  the  sratute  inhibits  is  actual  force.**"  The 
statute  was  not  intended  to  apply  to  a  mere  trespass,  however  wrong- 
ful. The  entry  or  detainer  must  be  riotous,  or  personal  violence  must 
be  used,  or  in  some  way  threatened,  or  the  conduct  of  the  parties 
guilty  of  the  entry  or  detainer  must  be  such  as  in  some  way  to  inspire 
terror  or  alarm  in  the  persons  evicted  or  kept  out.  In  other  words, 
the  force  contemplated  by  the  statute  is  not  merely  the  force  used 
against  or  upon  the  property,  but  force,  used  or  threatened,  against 
persons  as  a  means  or  for  the  purpose  of  expelling  or  keeping  out  the 
prior  possessor.**^  There  must  be  at  least  apparent  violence,  or  some 
unusual  weapons,  or  the  parties  attended  with  an  unusual  number  of 
people;  some  menaces,  or  other  acts  giving  reasonable  cause  to  fear 
that  the  party  making  the  forcible  entry  will  do  some  bodily  hurt  to 
those  in  possession  if  they  do  not  give  up  the  same.**^  If  there  is  no 
more  force  used  than  is  implied  in  every  trespass,  with  nothing  to 
excite  fear  of  personal  violence,  the  case  is  not  within  the  statute; 
and  therefore  the  forcing  open  an  outer  door  of  a  dwelling  house,  in 
a  peaceable  manner,  is  not  of  itself  sufficient  to  constitute  a  forcible 
entry  within  the  meaning  of  the  statute.*^^ 

§  558.     Civil  liability  of  landlord  regaining  possession  by  force. 

It  may  be  stated  as  a  general  rule  that  though  an  entry  by  force 
might  subject  a  landlord  to  penalties  for  a  breach  of  the  law  crim- 
inally, it  confers  no  right  of  action  on  the  tenant  thus  holding  without 
any  right  of  possession.***     The  distinction  between  the  civil  rights 

*^Fort  Dearborn  Lodge  v.  Klein,  (Mass.)    147;    Stearns  v.   Sampson, 

115  111.  177,  191,  3  N.  E.  272,  56  Am.  59  Me.  568;    Pendill  v.  Union  Min. 

R.  133.  Co.,    64    Mich.    172,    31    N.    W.    100; 

*"  Shaw  V.  Hoffman,  25  Mich.  162.  Smith  v.  Detroit  Loan  &  Bldg.  Ass'n, 

^'^  Commonwealth    v.    Shattuck,    4  115  Mich.  340,  73  N.  W.  395;   Jack- 

Cush.    (Mass.)    141,145.  son  v.  Farmer,  9  Wend.  (N.  Y.)  201; 

'^  Smith   V.   Reeder,   21   Ore.   541,  Hyatt   v.   Wood,   4   Johns.    (N.   Y.) 

28  Pac.   890;    Frazier  v.   Hanlon,   5  150;  Ives  v.  Ives,  13  Johns.   (N.  Y.) 

Cal.  156;  Commonwealth  v.  Dudley,  235;    Freeman   v.   Wilson,   16   R.    I. 

10    Mass.    403;    Gray    v.    Finch,    23  524;  Mussey  v.  Scott,  32  Vt.  82;  Vin- 

Conn.    495;     Hendrickson    v.     Hen-  son  v.  Flynn,  64  Ark.  453,  43  S.  W. 

drickson,  12  N.  J.  L.  202.  146,  46  S.  W.  186;  Miner  v.  Stevens, 

'"Meader     v.      Stone,     7     Mete.  1  Cush.    (Mass.)    482,  485;   Low  v. 


§■  558]  TEEMIXATIOX   OF  TEXAXCY.  628 

of  a  person  forcibly  turned  out  of  the  possession  of  land,  and  the 
penal  sanctions  by  which  he  is  protected  from  being  forcibly  dispos- 
sessed, are  drawn  in  a  marked  way  in  the  cases  in  the  old  books  re- 
lating to  the  statutes  of  forcible  entry.  Although  by  those  statutes 
all  forcible  entries  were  prohibited,  even  by  those  who  had  title  to 
enter,  yet  the  party  dispossessed  could  maintain  no  action  on  the 
statutes.**^  If  an  action  of  trespass  had  been  brought,  the  landlord 
could  have  justified  under  a  plea  of  liherum  tenementum.  For  enter- 
ing with  a  strong  hand  to  dispossess  the  tenant  by  force,  the  land- 
lord may  be  indicted  for  a  forcible  entry,  but  there  can  be  no  doubt 
of  his  right  to  enter  at  the  expiration  of  the  term.  There  is  not  the 
slightest  pretence  for  considering  him  as  a  trespasser.*^®  It  would 
put  an  end  to  the  enjoyment  of  property  to  hold  that  trespass  quare 
clausum  fregit  could  be  maintained  against  the  owner,  with  right 
of  possession,  who  merely  takes  possession  of  what  is  his  own.'*^^  The 
party  entitled  to  the  possession  of  leased  premises  has  a  right  to  take 
it  in  any  manner  not  constituting  a  breach  of  the  peace,  and  it  never 
was  the  design  of  the  legislature  to  take  away  this  right  by  the 
statute  relative  to  forcible  detainer.**^  After  a  landlord,  entitled  to 
reenter  for  condition  broken,  has  taken  possession  peaceably  in  the 
absence  of  his  tenants  from  the  premises,  he  has  the  right  to  protect 
his  possession  by  force,  if  necessary,  as  well  against  his  former  ten- 
ants as  against  any  one  else  proposing  to  take  possession  without 
right.  A  clearer  case  of  a  landlord's  right  to  use  force  can  scarcely 
be  stated  than  where  a  legal  possession  has  been  gained,  and  force 
is  only  employed  to  defend  it,"*^^  It  seems  to  be  fully  settled  by  the 
weight  of  judicial  authority  that,  when  a  tenancy  has  been  legally 

Elwell,  121  Mass.  309;  Fuhr  V.  Dean,  *"  Mueller  v.   Kuhn,   46    111.    App. 

26  Mo.  116,  69  Am.  Dec.  484;  Over-  496;    Hoots  v.  Graham,  23   111.   81; 

deer  v.  Lewis,  1  W.  &  S.   (Pa.)   90;  Ostatag  v.  Taylor,  44  111.  App.  469; 

Johnson  v.  Hannahan,  1  Strob.   (S.  Frazier   v.    Caruthers,   44    111.   App. 

Car.)  313;  Tribble  v.  Frame,  7  J.  J.  61;    Eichengreen   v.    Appel,    44    111. 

Marsh.    (Ky.)   599;   Walton  v.  File,  App.  19;   Brooke  v.  O'Boyle,  27  111. 

1  Dev.  &  B.  L.  (N.  Car.)  567;  Beech-  App.  384;   Fort  Dearborn  Lodge  v. 

er  V.   Farmele,   9   Vt.    352;    Yale  v.  Klein,  115  111.  177,  3  N.  E.  272. 

Seely,  15  Vt.  221;  Hodgeden  v.  Hub-  *"»  Pendill   v.   Union   Min.   Co.,   64 

bard,  18  Vt.  504.  Mich.  172,  31  N.  W.  100. 

*^  Newton  v.  Harland,  1  M.  &  G.  *''Winn  v.  State,  55  Ark.  360,  18 

644,  39  E.  C.  L.   952;    Pike  &  Has-  S.  W.  375;  Towell  v.  Etter,  69  Ark. 

sen's   Case,    3   Leon.   134,    143;    Co.  34,    59    S.   W.    1096,    63    S.    W.    53; 

Lit.  576.  Mussey    v.    Scott,    32    "Vt.    82.      See 

*'*  Taunton  v.  Costar,  7  Term  R.  also,  Sharp  v.  Kinsman,  18  S.  Car. 

427;  Harvey  v.  Brydges,  14  M.  &  W.  108. 
437. 


629  EESTOKATION   OF   POSSESSION   TO   LANDLORD.  [§    559 

determined,  the  landlord  may  enter  peaceably  Tipon  the  premises; 
thus  entering  he  may  remove  the  tenant  therefrom,  using  such  force 
as  would  sustain  a  plea  of  molUter  manus  imposuit;  if  the  tenant, 
after  a  sufficient  opportunity,  neglects  to  remove  his  goods,  the  land- 
lord may  do  so,  using  care  in  their  removal  and  depositing  them  in  a 
near  and  convenient  place.*®" 

Where  the  statutory  remedy  for  forcible  ejection  from  land  is  a  civil 
action  of  forcible  entry  and  detainer,  there  is  no  other  remedy  but 
what  is  afforded  by  those  acts,  and  the  evicted  party  cannot  bring  tres- 
pass.*®^ The  landlord's  title  and  right  to  possession  are  a  complete 
Justification  for  his  entry  upon  the  land,  and  the  tenant  as  against 
him  has  no  right  of  occupation  whatever.  Having  obtained  posses- 
sion by  an  act  of  which  the  tenant  has  no  right  to  complain,  he  can- 
not be  liable  to  an  action  for  the  incidental  act  of  expulsion  to  which 
he  is  obliged  to  resort  because  of  the  tenant's  unlawful  resistance.*®^ 

A  lessor,  though  out  of  possession,  may  enter  under  the  protection 
of  a  statute  relative  to  liens  to  give  or  post  an  original  notice  that  his 
interest  is  not  bound  by  the  lien.  Such  an  entry  is  not  an  unlawful 
invasion  of  the  rights  of  the  tenant  or  a  trespass.  No  wrong  or  in- 
jury is  inflicted  on  the  tenant  or  his  property.  The  landlord  enters 
by  necessity,  and  under  the  authority  of  law  to  protect  his  interest  in 
the  reversion.    In  such  case  no  action  lies.*®^ 

§  559.  Trespass  for  assault  and  battery  against  landlord. — A  land- 
lord, who  having  peaceably  entered  after  the  termination  of  the 
tenancy,  proceeds,  against  the  tenant's  opposition,  to  take  out  the 
windows  of  the  house,  or  to  forcibly  eject  the  tenant,  is  not  liable  to 
an  action  for  an  assault,  if  he  uses  no  more  force  than  is  necessary 
for  the  purpose.*®*  Furthermore,  American  cases  of  the  greatest 
weight  support  the  opinion  that  a  person  who  has  ceased  to  be  a  tenant, 
or  to  have  any  lawful  occupancy  has  no  greater  right  of  action  when 

*°»  Stearns  v.  Sampson,  59  Me.  568;  26  Mo.  116;    People  v.  Leonard,  11 

Cunningham  v.  Horton,  57  Me.  420;  Johns.    (N.  Y.)    504,  509. 

Allen  v.  Blcknell,  36  Me.  436;   Cur-  ^"^  Smith   v.   Reeder,   21   Ore.   541, 

tis  V.  Galvin,  1  Allen   (Mass.)   215;  28  Pac.  890,  15  L.  R.  A.  172. 

Mugford    V.    Richardson,    6    Allen  *^^  Congdon   v.   Cook,   55   Minn.   1, 

(Mass.)    76;    Smith    v.    Reeder,    21  56    N.    W.    253;    Brown    v.    Beatty, 

Ore.  541,  28  Pac.  890.  34  Miss.  227,  69  Am.  R.  389. 

'"Vinson   v.   Flynn,   64  Ark.    453,  '°' Mugford  v.  Richardson,  6  Allen 

43  S.  W.  146,  46  S.  W.  186;   Krevet  (Mass.)    76;    Winter    v.    Stevens,    9 

V.  Meyer,  24  Mo.  107;  Fuhr  v.  Dean,  Allen  (Mass.)  526;  Stone  v.  Lahey, 

133  Mass.  426. 


§'  559]  TERMINATION"  OF  TEXAXCY.  630 

the  force  exerted  against  his  person  is  contemporaneous  with  the  land- 
lord's forcible  entry  npon  the  premises.*^^ 

On  the  other  hand,  there  is  a  line  of  cases  requiring  the  entry  of  the 
landlord  must  be  a  peaceable  one  and  unaccompanied  by  force  or 
violence.*®^  Furthermore,  the  rule  allowing  forcible  retention  of  a 
possession  gained  by  peaceable  entry  has  no  application  where  the 
rights  of  the  parties  are  in  litigation  and  dispute.  A  landlord  entitled 
to  possession  has  no  right  in  defiance  of  the  law,  and  in  contempt  of 
the  court  in  which  his  proceedings  to  obtain  possession  are  pending, 
to  take  the  matter  into  his  own  hands  and  by  force  and  violence  eject 
the  tenant.''" 

If  a  landlord  is  entitled  by  law  to  the  possession  of  premises,  he  has 
a  right  to  enter  peaceably  into  the  possession  thereof,  and  the  tenants 
have  no  right  to  remove  him  by  force.  If  in  doing  so  they  make  an 
assault  on  him  that  is  unlawful,  he  has  a  right  to  resist  such  assault 
by  force  sufficient  to  repel  it,  and,  if  using  no  more  force  than  is  neces- 
sary to  repel  the  assault,  he  is  not  liable  to  the  tenants  in  an  action  for 
assault  and  battery.*®® 

Formerly  in  Massachusetts  there  were  some  general  dicta  to  the 
effect  that  trespass  for  an  assault  would  lie  against  a  landlord  for  an 
assault  committed  in  the  course  of  making  a  forcible  entry.*®®  But 
since  then  the  general  doctrine  that  expulsion  was  mere  aggravation 
in  trespass  quare  clausum  and  answered  by  plea  of  title  has  been  de- 
clared,^*"' and  the  right  to  expel  with  necessary  force  has  been  af- 
firmed.^°^  Clearly  therefore  no  civil  action  is  maintainable  in  Massa- 
chusetts by  inference  from  the  general  prohibition  of  the  statute 
against  forcible  entries. 

*'=Eames     v.     Prentice,     8     Gush.  88  N.  W.  426;   Bristor  v.  Burr,  120 

(Mass.)  337;  Curtis  v.  Galvin,  1  Al-  N.  Y.  427,  24  N.  E.  937. 

len  (Mass.)  215;  Low  v.  Elwell,  121  ^="  Gillespie   v.   Beecher,   85    Mich. 

Mass.    309;    Jackson    v.    Farmer,    9  347,  48  N.  W.  561;  Ayres  v.  Birtch, 

Wend.     (N.    Y.)     201;     Overdeer    v.  35  Mich.  501;   Lobdell  v.  Keene,  85 

Lewis,  1  W.  &  S.   (Pa.)   90;   Kellam  Minn.   90,  88  N.  W.   426. 

V.  Janson,  17  Pa.   St.  467;    Stearns  ^'^  Sampson    v.     Henry,     11     Pick 

v.    Sampson,   59   Me.    568;    Sterling  (Mass.)  379;  Commonwealth  v.  Ha- 

V.  Warden,  51  N.  H.  217.  ley,  4  Allen  (Mass.)  318. 

496  Fredericksen     v.     Singer     Mfg.  ^'^  Merriam    v.    Willis,    10    Allen 

Co.,   38   Minn.    356,   37    N.    W.    453;  (Mass.)  118. 

Mercil  v.  Broulette,  66  Minn.  416,  69  ^"^  Pratt     v.      Farrar,      10     Allen 

N.    W.    218;    Lobdell   v.    Keene,    85  (Mass.)   519,  521;    Morrill  v.  De  la 

Minn.  90,  88  N.  W.  426.  Granja,  99  Mass.  383. 

*"  Lobdell  V.  Keene,  85  Minn.  90, 


631  KESTORATION   OF   POSSESSION   TO   LANDLORD.    [§§    560,   561 

§  560-  Where  a  tenant  is  legally  entitled  to  possession  and  the 
landlord  forcibly  enters  on  him,  such  entry  is  an  interference  with  the 
tenant's  right  to  possession  for  which  he  is  clearly  entitled  to  maintain 
an  action  of  trespass-^^^  ^  landlord  commits  a  trespass  by  breaking 
open  a  building  upon  the  demised  premises  during  the  term  of  the 
lease  and  removing  goods  even  though  he  has  bought  the  goods.^*^^ 
A  right  of  entry  upon  leased  premises,  by  the  landlord  for  one  pur- 
pose will  not  justify  the  performance  of  such  acts  for  another  purpose ; 
nor  will  the  consent  of  the  tenant  to  an  entry  for  a  short  time,  for 
necessary  repairs,  justify  extensive  alterations  requiring  the  removal 
of  the  tenant.^''*  A  mere  trespasser  cannot  recover  damages  against 
a  landlord  who  removes  an  obstruction  he  has  wrongfully  placed  upon 
the  real  estate  of  the  landlord,  simply  because  it  was  the  tenant  who 
should  have  removed  the  obstruction.  If  the  landlord  chooses  to  pro- 
tect the  tenant  in  his  possession,  a  mere  trespasser  cannot  complain. 
Whether  the  landlord  entered  rightfully  upon  the  tenant's  possession 
is  a  question  between  the  landlord  and  the  tenant  with  which  others 
are  not  concerned.^"^ 

§  561.  The  rule  allowing  the  use  of  force  to  recover  possession  of 
real  estate,  which  makes  the  landlord  a  law  unto  himself,  is  not  con- 
ducive to  good  business  principles  or  to  good  order,  and  for  that 
reason  is  not  looked  upon  with  favor  in  all  quarters.  Where  state 
statutes  provide  a  speedy,  adequate  and  orderly  method  for  a  land- 
lord to  obtain  possession  of  his  property  upon  failure  of  the  tenant 
to  pay  rent,  or  upon  failure  to  perform  any  other  condition  or  cove- 
nant contained  in  the  lease,  such  statutes  have  been  held  to  provide 
an  exclusive  remedy,  nothwithstanding  an  agreement  permitting  pos- 
session to  be  taken  by  force.^°«  The  Colorado  statute  takes  away  the 
right  that  existed  at  common  law  to  make  entry  by  force,  although 
the  right  to  possession  may  exist.  Yet  a  license  reserved  in  the  lease 
to  make  such  an  entry  does  not  contravene  the  statute,  and  under 
such  a  provision  the  landlord  may  enter  and  remove  a  tenant  upon 
condition  broken,  if  he  use  no  unnecessary  force  to  accomplish  his 
purpose.^"^   In  Connecticut  the  law  was  declared  to  be  that  a  posses- 

""' Green  v.  Hammock,   13  Ky.   L.  ^"^Ebersol  v.  Trainor,  81  111.  App. 

R.  145.  645. 

"""  Shores  v.   Brooks,   81   Ga.    468,  =~  Spencer  v.  Commercial  Co.,  30 

8  S.  E.  429.  Wash.    520,    71    Pac.    53;    McClellan 

'"'^Dwyer  v.   Carroll,   86   Cal.  298,  v.    Gaston,    18    Wash.    472,    51    Pac. 

24  Pac.  1015;   Shiffer  v.  Broadhead,  1062. 

126  Pa.  St.  260,  17  Atl.  592.  "^o' Goshen  v.  People,  22  Colo.  270, 

44  Pac.  503. 


§    561]  TERMINATION  OF  TENANCY.  633 

sion,  commenced  under  a  tenancy,  cannot  be  put  an  end  to  in  fact 
by  forcibly  removing  the  tenant  without  process.^"^  It  has  been  held 
in  that  state  that  a  plea  of  liberum  tenementum  was  not  a  good  plea 
in  an  action  of  trespass  for  a  forcible  entry  by  a  landlord.^"®  As  such 
act  is  directly  prohibited,  the  act  itself  is  made  unlawful,  even  if  it 
were  not  already  so  at  common  law,  and  it  therefore  follows  that  a 
landlord  under  such  circumstances,  though  he  has  a  right  of  entry, 
must  in  order  to  reinvest  himself  with  the  lawful  possession  of  the 
premises,  held  over  by  his  tenant,  exercise  his  right  of  reentry  peacea- 
bly, and  that  he  cannot  found  a  legal  right  to  remove  the  tenant 
upon  the  illegal  act  of  a  forcible  possession.^^"  Furthermore  there  is 
no  distinction  between  a  forcible  retaking  possession  of  premises 
where  a  party  is  resisted  and  resistance  is  overcome  by  superior  force, 
and  a  quiet,  peaceable  reentry.  Unless  a  party  has  a  right  to  retain 
possession  by  force  and  strong  hand  when  he  has  once  acquired  it 
peaceably  in  the  temporary  absence  of  another  party,  the  right  would 
be  valueless.  It  could  hardly  be  called  a  right,  if  he  must  leave  as 
peaceably  as  he  entered,  upon  the  return  and  demand  of  the  other 
party.  If  the  landlord  has  the  right  to  retain  possession  by  force  a 
conflict  would  immediately  ensue  in  which  the  superior  force  would 
prevail,  and  it  matters  not  whether  that  conflict  arises  in  the  first 
-  instance,  or  after  one  of  the  contestants  has  got  into  possession  by 
stealth,  in  the  temporary  absence  of  the  other.  The  statute  of  forcible 
entry  and  detainer  is  against  the  right  of  the  landlord  to  regain  pos- 
session by  force.^^^ 

In  Illinois  the  court  considered  the  English  authority  equally  bal- 
anced on  this  question  and  the  American  cases  conflicting,  and,  rely- 
ing on  a  Vermont  case,  which  has  subsequently  been  overruled,  held 
that  an  action  for  damages  could  be  maintained  against  a  landlord 
for  forcible  entry.^^^  The  Illinois  court  is  consistent,  and  considers 
that  any  violent  entry,  even  after  the  tenant  has  abandoned  the 
premises,  is  equally  within  the  prohibition  of  the  statute  and  subjects 
the  landlord  to  an  action  of  trespass.  Although  it  is  true  that  courts 
will  not  lend  their  aid  to  enforce  a  contract  to  accomplish  something 
prohibited  by  law,  an  agreement  authorizing  an  entry  on  certain 
premises,  without  liability  as  a  trespasser  in  case  force  should  be  re- 

^o^  Larkin  v.  Avery,  23  Conn.  304.  overruled  by  Mussey  v.  Scott,  32  Vt. 

^"^  Bliss  V.  Bange,  6  Conn.  78.  82. 

^"Larkin  v.  Avery,  23  Conn.  304,  ="  Page    v.    DePuy,    40    111.    506; 

310.  Reeder  v.  Purdy,  41  111.  279;   Dear- 

"^  Mason  v.  Hawes,  52  Conn.  12.  love    v.     Herrington,    70     111.    251; 

"1^  Dustin  v.  Cowdry,   23  Vt.   631,  Briggs  v.  Roth,  28  111.  App.  313. 


633  KESTOEATION   OF   POSSESSION   TO   LANDLORD.  [§    5C3 

quired  to  obtain  possession,  is  not  an  agreement  to  do  an  unlawful 
act.  A  party  acting  under  such  an  agreement  would  still  be  liable 
criminally  for  breach  of  the  peace,  but  he  would  not  be  liable  in  a 
civil  action  for  assault,  and  battery.^ ^*  In  such  case  the  fact  that  the 
landlord  had  instituted  an  action  of  forcible  detainer  against  his  ten- 
ant would  not  operate  to  deprive  him  of  his  right  to  make  entry  un- 
der the  agreement  in  the  lease.  ®^^  For  a  mere  unlawful  entry  by  a 
landlord  upon  leased  premises  after  the  expiration  of  the  tenancy, 
unaccompanied  by  a  trespass  to  the  person  or  to  personal  property, 
only  nominal  damages  can  be  recovered,  because  the  tenant  has  no 
longer  a  legal  right  to  possession.^  ^^  But  it  is,  nevertheless,  a  tres- 
pass for  an  owner  to  enter  upon  premises  in  the  actual  possession  of 
an  occupier,  although  such  occupier  is  a  tenant  wrongfully  holding 
over.^^^  A  tenant,  returning  after  a  temporary  absence,  has  a  right  to 
force  an  entrance  against  his  landlord,  who  has  taken  possession  in 
the  meantime.^^® 

§  562.  Forcible  entry  and  detainer  distinguished  from  summary 
process. — In  many  states  the  remedy  of  a  person  on  whom  there  has 
been  a  forcible  entry  and  of  a  landlord  whose  tenant  refuses  to  yield 
up  possession  is  embodied  in  the  same  act.  But  they  are,  nevertheless, 
distinct  remedies  applying  to  different  classes  of  persons.  Thus,  in 
Massachusetts  the  action  of  forcible  entry  and  detainer  has,  by  stat- 
ute, been  so  extended  that  there  are  two  cases  in  which  the  right  to 
possession  may  be  tried  in  it.  The  relation  of  landlord  and  tenant 
is  such  that  it  was  deemed  advisable  to  give  to  a  landlord  a  summary 
process  by  which  to  eject  a  tenant  after  the  determination  of  the  ten- 
ant's estate;  and  so,  for  a  long  series  of  years,  it  has  been  the  law 
of  this  Commonwealth  that  this  writ  might  be  used  for  the  purpose 
of  restoring  to  his  possession  a  landlord  whose  tenant  is  holding  his 
estate  after  his  right  to  hold  it  has  ceased.  Although  this  writ  is 
used,  and  the  process  is  frequently  called  a  process  of  forcible  entry 
and  detainer,  yet  it  is  not  strictly  a  process  of  forcible  entry  and  de- 
tainer, but  it  is  given  as  a  remedy  to  a  landlord  whose  tenant  holds 
without  right,  whether  by  force  or  not ;  but  in  such  case  it  is  always 
limited  to  the  case  of  a  tenant,  for,  the  tenancy  having  been  proved, 
the  title  of  the  landlord  could  not  be  brought  in  question,  and  the 

"*  Ambrose  v.  Root,  11  111.  497;  "^Wright  v.  Mahoney,  61  111.  App. 
Fabri  v.  Bryan,  80  111.  182.  125. 

"^  Fabri  v.  Bryan,  80  111.  182.  "'  Chapman  v.  Cawrey,  50  111.  512. 

"''Kurrus  v.  Seibert,  11  111.  App. 
319;  Reeder  v.  Purdy,  41  111.  279. 


§!   563a]  TERMINATION   OF  TENANCY.  634 

only  issue  which  could  be  tried  is  whether  the  rights  of  the  tenant 
under  his  lease  had  expired.  In  ease  of  forcible  entry  on  one  in  peace- 
able possession,  unless  the  entry  or  detainer  is  accompanied  by  an 
actual  breach  of  the  peace,  the  course  of  legislation  has  made  the 
process  substantially  a  civil  proceeding,  and  has  prescribed  the  form 
of  writ  or  complaint  and  declaration  which  any  private  party  may  sue 
out  before  the  proper  justice;  and  by  incorporating  into  the  statute 
the  right  to  recover  by  the  same  process  lands  unlawfully  held  by  a 
tenant  against  his  landlord,  the  statute,  as  a  statute  of  forcible  entry 
and  detainer,  simply  seems  encumbered  with  some  anomaly.^^^ 

§  562a.  Statutes  relative  to  actions  of  summary  process  for  the  re- 
covery of  possession  by  a  landlord  confer  new  rights  and  prescribe  a 
remedy  by  a  course  of  proceeding  unknown  to  the  common  law.  They 
confer  a  special  power  over  a  subject,  and  prescribe  a  specific  mode 
for  its  exercise.  The  law  is  well  settled  that  in  such  case  the  mode 
prescribed,  especially  as  respects  jurisdiction,  must  be  strictly  pur- 
sued, whether  the  tribunal  upon  which  the  power  is  conferred  be  of 
superior  or  inferior  jurisdiction.^^*' 

The  object  of  such  acts  has  been  declared  to  be  to  afford  a  sum- 
mary relief,  and  avoid  the  expense  and  delay  attendant  upon  the 
prosecution  of  an  action  of  ejectment.  They  are  designed  as  statutes 
for  relief,  not  to  create  new  causes  of  action.  The  evident  intention 
is  to  give  this  summary  relief  in  those  cases  where  for  breach  of  such 
stipulations  the  action  of  ejectment  would  lie.  This  throws  every 
case  upon  tha  ground  where  the  matter  rests  at  common  law,  the 
statute  having  simply  the  effect  of  affording  a  speedy  and  summary 
restitution  of  the  premises  in  cases  where  the  party  would  otherwise 
be  under  the  necessity  of  resorting  to  an  action  of  ejectment.  Any 
other  construction  would  be  manifestly  unjust  and  inequitable,  for 
if  such  proceedings  could  be  maintained  for  the  breach  of  any  and 
every  stipulation  in  a  lease,  the  lessee  might  be  deprived  of  the  prem- 
ises for  the  non-performance  of  an  unimportant  stipulation  in  the 
lease.^2^  Where  a  tenant,  acting  within  his  lawful  rights,  admitted 
another  as  his  sub-tenant  to  hold  until  his  lease  should  expire,  the 
sub-tenant's  obtaining  of  possession  is  peaceable  and  lawful,  and  his 
refusal   to   surrender   after   proper   demand  made,   brings   the   case 

"^Hodgkins    v.    Price,    132    Mass.  Cohen  v.  Barrett,  5  Cal.  195;   Staf- 

196.  tord  V.  Ingersol,  3  Hill   (N.  Y.)   38; 

""Haywood  v.  Collins,  60  111.  328;  Renwick  v.  Morris,  73  Hill   (N.  Y.) 

Burns   v.    Nash,    23    111.    App.    552;  575. 
Cooper  V.  Sunderland,  3  Iowa  114;         "' Hadley  v.  Havens,  24  Vt.  520. 


4 


635  RESTORATION"   OF   POSSESSION   TO   LANDLORD.  [§    563 

squarely  within  the  conditions  of  unlawful  detainer  as  defined  by  the 
Arkansas  code,  so  that  the  landlord  would  be  entitled  to  maintain 
summary  process  to  recover  possession.^^^  The  name  by  which  this 
summary  process  is  commonly  known  is  an  action  for  unlawful  de- 
tainer. 

§  563.  The  action  of  unlawful  detainer  can  be  maintained  only 
where  the  relation  of  landlord  and  tenant  subsists  between  the 
parties  to  the  action,  and  hence  it  becomes  material  to  determine 
whether  parties  stand  in  that  relation  to  each  other.^^^  While  it  is  not 
necessary  to  show  an  express  demise  or  letting  of  lands  to  sustain  the 
action,  the  facts  must  show,  impliedly  at  least,  that  the  defendant 
occupies  as  tenant  of  the  plaintiff,  and  this  must  be  something  more 
than  a  mere  quasi  tenancy.  It  is  sometimes  said  that  one  who  is  in 
possession  of  lands  under  a  contract  for  a  sale  is  a  tenant  at  will  to 
the  owner.  This  is  true  in  a  restricted  sense  only.  He  is  a  tenant  at 
will  just  as  a  mortgagor  after  condition  broken  is  a  tenant  at  will  of 
the  mortgagee.  He  may  be  deprived  of  the  possession  if  it  can  be  done 
peaceably,  or  may  be  evicted  in  an  action  of  ejectment.  The  mort- 
gagor is  not  a  tenant  within  the  meaning  of  the  unlawful  detainer 
act,  however.^2*  The  conventional  relation  of  landlord  and  tenant 
means  the  relation  created  by  convention  or  agreement  between  the 
parties.^25  rpj^^  ^^ggg  ^^.^  numerous  in  which  a  summary  remedy  has 
been  refused  because  the  contract  or  circumstances  under  which  the 
owner  of  premises  permitted  another  to  take  possession  of  them  con- 
templated some  condition  or  consideration  apart  from  rent,  or  a  ten- 
ancy at  the  mere  sufferance  or  will  of  the  owner. ^^e  yet  a  grantee  of 
the  landlord  could  maintain  an  action  of  summary  process  to  recover 
possession  from  a  tenant  of  the  latter,  and  under  a  code  provision 
giving  this  right  to  "a  person  to  whom  real  property  is  transferred  or 
devised"  it  was  held  that  a  lessee  for  a  term  of  years  from  a  land 
owner  could  maintain  the  process  against  a  former  tenant  from  month 

^^  Winkler  v.  Massengill,  66  Ark.  ertson  v.  Sutton,  5  Wend.    (N.  Y.) 

145,  49  S.  W.  494.  281. 

"'Mason  v.  Delancy,  44  Ark.  444;  "'Benjamin  v.  Benjamin,  5  N.  Y. 

Buel  v.  Buel,  76  Wis.  413,  45  N.  W.  383. 

324;  Matthews  v.  Matthews,  49  Hun  "«Dolittle   v.   Eddy,    7    Barb.    (N. 

(N.    Y.)    346;    Roach   v.    Cosine,    9  Y.)    74;    People  v.  Annis,  45  Barb. 

Wend.  (N.  Y.)  227;  Greer  v.  Wilbar,  (N.  Y.)    304;    Haywood  v.  Miller,  3 

72  N.  Car.  592;  Johnson  v.  Hauser,  Hill  (N.  Y.)  90;  Russell  v.  Russell, 

82  N.  Car.  375.  32  How  Pr.    (N.  Y.)    400;   Williams 

"'Mason  v.  Delancy,  44  Ark.  444;  v.  Bigelow,  11  How.  Pr.  (N.  Y.)  83; 

Necklace  v.  West,  33  Ark.  682;   Bv-  Sims  v.  Humphrey,  4  Denio  (fJ.  Y.) 

185. 


I    563]  TEEMINATION   OF   TENANCY.  636 

io  month,  even  without  attornment.^^''  The  title  to  real  estate  cannot, 
however,  be  litigated  in  this  form  of  action.  ^^^  Many  statutes  con- 
ferring jurisdiction  upon  justices  of  the  peace  to  try  actions  of  forcible 
entry  and  detainer  expressly  inhibit  all  inquiry  into  the  merits  of  the 
title;  and  decisions  are  uniform  to  this  effect  that  title  is  not  within 
the  issue  involved  in  this  action.  The  thing  that  is  involved  is  such 
right  of  possession  between  the  parties  to  the  record  as  may  be  worked 
out  and  adjudged  aside  and  apart  from  all  considerations  of  title. 
The  action  is  maintainable  by  any  one  entitled  to  the  immediate  pos- 
session against  any  one  unlawfully  withholding  possession  where  the 
relation  of  landlord  and  tenant  exists  between  the  parties.^^^  This 
form  of  proceeding  has  been  declared  by  courts  in  another  state  to  be 
possessory  only,  and  not  to  involve  title.^^"  Obviously,  it  can  be 
brought  only  in  the  cases  specified  in  the  statute,^^^  and  therefore  it 
will  not  lie  against  one  who  has  entered  under  a  lease  valid  for  one 
year  and  holds  under  a  contract  enforceable  in  equity  against  the 
plaintiff  as  a  lease  for  a  longer  period.^^^  In  Georgia  the  remedy  for 
recovery  of  land  from  a  tenant  holding  over  is  available  in  favor  of  a 
vendee  of  the  original  landlord.^^^  In  California  it  may  be  brought 
by  the  executor  of  a  deceased  lessor.^^*  Formerly  in  Missouri,  where 
the  person  having  the  legal  right  to  possession  had  never  himself  been 
in  possession,  he  could  not  maintain  an  action  of  forcible  entry  and 
detainer,  or  of  unlawful  detainer,  but  was  put  to  his  ejectment.^^* 
But  this  rule  has  been  changed  by  a  statute  giving  heirs,  devisees, 
grantees  and  assigns  the  same  remedies  to  which  the  ancestor,  devisor, 
grantor  or  assignor  was  before  entitled  to.^^® 

It  would,  however,  be  no  answer  or  legal  defense  to  a  proceeding 
instituted  by  a  landlord  to  obtain  restitution  of  the  possession  of 
premises  that  he  had  made  a  contract  of  lease  of  them  to  another  to 
commence  on  the  day  following  the  expiration  of  the  former  term. 

«"  McDonald    v.    Hanlon,    79    Cal.        "=Lobdell  v.  Mason,  71  Miss.  937, 

442,  21   Pac.   861.  15  So.  44. 

^^  Hoffman  v.  Clark,  63  Mich.  175,         "'  Morrow  v.  Sawyer,  82  Ga.  226, 

29  N.  W.  695.  8  S.  E.  51. 

^=»Nicrosi  v.  Phillipi,  91  Ala.  229,         =^*  Knowles    v.    Murphy,    107    Cal. 

8  So.  561;   Welden  v.  Schlosser,  74  107,  40  Pac.  111.  See,  Reay  v.  Cotter, 

Ala.  355;  Houston  v.  Farris,  71  Ala.  29  Cal.  168. 
570.  '''^  L'Hussier  v.  Zallee,  24  Mo.  13; 

=^°  Spears      v.      McKay,      Walker  McCartney  v.  Alderson,  45  Mo.  35. 
(Miss.)    265;    Lorring   v.   Willis,    4         ■^5°  Kelly   v.   Clancy,    15    Mo.   App. 

How.   (Miss.)   383.  519. 

^^McCorkle   v.    Yarrell,    55    Miss. 
576. 


637  RESTORATION    OF    POSSESSION    TO    LANDLORD.  [§    564 

Under  this  contract  the  landlord  would  be  bound  to  give  possession  of 
the  premises,  and  would  therefore  be  entitled  to  maintain  proceedings 
under  the  code  to  oust  the  tenant  wrongfully  holding  over.^^^ 

According  to  the  general  doctrine  which  precludes  a  lessee  from 
denying  his  lessor's  title,  the  existence  of  the  relation  of  landlord  and 
tenant  eliminates  all  dispute  as  to  title,  and  even  in  a  Jurisdiction 
where  an  exception  is  made  to  the  general  doctrine,  such  exception 
was  held  not  to  apply  in  an  action  of  unlawful  detainer,  and  the  lessee 
in  that  action  was  not  allowed  to  dispute  his  landlord's  title.^^® 

§  564.  Statutory  penalty  for  holding  over. — Punishment  for  a 
tenant  who  wrongfully  holds  over  was  provided  by  the  Statute  of 
4  George  II,  ch.  38,  which  was  a  remedial  statute  with  a  penalty  at- 
tached, to  be  given  to  the  party  grieved. ^^^  By  this  statute  the  penalty 
which  the  landlord  is  entitled  to  recover  by  action  of  debt,  is  double 
the  yearly  value  of  the  lands,  tenements  or  hereditaments  so  detained, 
for  so  long  time  as  the  same  are  detained.  It  is  the  double  value,  not 
the  double  rent,  which  is  recoverable,  for  in  some  cases  double  rent 
would  be  of  no  value  at  all.^*°  It  is  clearly  the  yearly  value  which  is 
to  be  ascertained,  and  double  that  is  what  the  statute  allows  to  be  re- 
covered.^*^ But  under  the  language  of  the  English  acts  the  penalty 
or  forfeiture  ceases  whenever  the  possession  is  restored  to  the  landlord 
and  the  courts  have  so  determined.^*-  In  Alabama  the  wording  of  the 
statute  is  different,  the  precise  language  being  that  the  tenant  so  hold- 
ing over  "is  liable  for  double  the  amount  of  the  annual  rent  agreed 
to  be  paid  under  such  contract."  It  is  not  "so  long  as  the  tenant  con- 
tinues to  hold  over,"  or  "so  long  as  the  lessor  is  kept  out  of  posses- 
sion," or  "at  the  rate  of  double  the  agreed  rent,"  and  it  must  be  sup- 
posed that  this  difference  in  wording  was  intentional,  so  that  no  room 
is  left  for  interpretation.  The  clause  in  the  statute  which  secures  to 
the  landlord  the  right  to  recover  "such  other  special  damage  as  may 
be  thereby  sustained"  seems  to  be  framed  with  special  reference  to  a 
loss  of  other  tenants  caused  by  such  delay.  So  the  only  answer  to  the 
argument  of  hardship  on  the  tenant  is  to  say  that  the  court  must  deal 
with  the  statute  as  it  is.^*^ 

""Gelston  v.  Sigmund,  27  Md.  345.  ="  Timmins  v.  Rowlinson,  3  Burr. 

^'^Knowles    v.    Murphy,    107    CaL  1603. 

107,  40  Pac.  111.  ''"Cobb    v.    Stokes,    8    East    358; 

'''"  Wilkinson    v.    Colley,    5    Burr.  Lloyd  v.  Rosbee,  2  Camp.  453. 

2694;    Cross  v.  McClenahan,  54  Md.  "^  Ullman  v.  Herzberg,  91  Ala.  458, 

21.  8  So.  408. 

■^Alex.  Brit.  St.  711. 


§    565]  TEEMINATIOX    OF    TEXAXCY.  638 

Resort  cannot  be  made  to  equity,  because  the  statute  provides  a 
remedy  by  -which  the  penalty  may  be  recovered.  That  remedy  is  "hj 
action  of  debt,"  and  it  is  the  only  mode  provided  by  which  the  party 
aggrieved  may  get  the  benefit  of  its  provisions.  Special  remedies,  and 
more  particularly  extraordinary  ones,  and  of  a  penal  nature,  must  be 
specially  and  strictly  pursued.  Action  of  debt  being  the  form  of  action 
prescribed  for  the  recovery  of  the  penalty,  the  facts  necessary  to  the 
recovery  must  be  established  in  that  way.  In  invoking  the  aid  of  a 
court  of  equity  to  enforce  the  penalty  given  by  the  statute,  a  party 
would  be  going  to  a  tribunal  that  never  enforces  a  penalty  and  often 
relieves  against  one.^** 

Consent  by  a  landlord  to  his  tenant's  holding  over  for  a  short  period 
would  not  be  a  waiver  of  his  right  to  exact  the  statutory  penalty  if  the 
tenant  subsequently  refused  to  leave  when  requested. ^*^  A  penal  pro- 
vision of  this  nature  in  a  lease  will  not  be  extended  by  construction, 
and  if  the  premises  consist  of  several  parcels  to  be  surrendered  at 
different  times,  the  penalty  will  not  attach  till  the  time  for  the  sur- 
render of  the  last  parcel.^*® 

A  clause  in  a  lease  providing  for  a  redelivery  of  the  premises,  and 
obligating  the  lessees  to  pay  the  lessor  double  rent  for  all  such  time 
as  they  shall  hold  over  the  premises  after  the  expiration  of  the  term, 
does  not  deprive  the  lessor  of  his  option  to  retake  the  premises  at  the 
expiration  of  the  lease.  But  if  the  lessor  fails  to  do  so,  or  to  make  a 
new  agreement  with  the  lessees,  it  deprives  him  of  the  power  to  do 
more  than  recover  double  rent  for  the  time  he  permits  the  lessees  to 
hold  over  after  the  expiration  of  the  lease. ^*'^  Such  a  provision  for 
double  rent  may  be  waived  by  the  payment  and  acceptance  of  rent  on 
the  old  terms.^*^ 

§  565.  A  bill  in  equity  is  not  the  appropriate  remedy  to  obtain 
possession  of  premises  from  a  tenant  holding  over  nor  to  try  the  title 
to  premises  which  such  a  tenant  sets  up  to  maintain  his  possession. 
In  an  ordinary  case  of  a  tenant  holding  over  after  the  expiration  of' 
his  lease,  where  no  reason  is  shown  why  the  complainant  cannot  at 
once  avail  himself  of  the  summary  remedy  given  by  statute  to  oust 
the  defendant  and  to  obtain  restitution  of  the  premises,  or  why  he 

"*  Cross  V.  McClenahan,  54  Md.  21.         "^  Green  v.  Kroeger,  67  Mo.  App. 
"=  Ullman  v.  Herzberg,  91  Ala.  458,     621. 
8  So.  408.  "'  Deaver  v.  Randall,  5  Mo.  App. 

'^'Klingle  v.  Ritter,  54  111.  140.         297;    Wilgus  v.  Lewis,   8   Mo.  App. 

336.  u 


639  RESTORATION   OF   POSSESSION   TO   LANDLORD.  [§    566 

cannot  resort  to  an  action  of  ejectment,  equity  will  not  interfere.'*^ 
Sucli  a  bill  cannot  be  maintained  on  the  ground  of  removing  a  cloud 
upon  the  title,  for  the  reason  that  it  states  no  title  or  pretended  title 
which  would  be  apparently  good  at  law  without  evidence  aliunde. 
Where  a  bill  states  nothing  but  a  naked  pretense  of  title,  there  is  no 
ground  for  applying  to  a  court  of  equity  to  get  rid  of  it  because  of 
apprehended  injury.^^''  The  remedy  at  law  to  evict  a  tenant  holding 
over  is  complete,  and  there  is  no  occasion  to  resort  to  a  court  of 
equity. ^®^  Furthermore,  in  such  a  proceeding  the  court  cannot  look 
to  the  equities  of  the  parties,  but  must  enforce  their  strict  legal  rights. 
The  legal  rights  of  parties  as  defined  by  the  written  lease  and  contract 
may  be  asserted,  but  any  rights  growing  out  of  an  estoppel  in  pais, 
which  in  equity  would  arrest  the  assertion  of  the  legal  right,  must  be 
presented  in  another  form.  A  court  of  equity  may  enjoin  the  further 
prosecution  of  a  suit  of  forcible  entry  and  detainer  till  the  rights  of 
the  parties  are  fully  settled  in  equity,  and  the  equitable  estoppel  is 
then  made  effective  in  a  court  of  law.°^^ 

§  566.  Form  of  judgment  in  summary  process. — In  a  proceeding 
under  the  Delaware  statute  to  recover  possession  of  demised  premises 
after  the  end  of  the  term,  a  verdict  for  the  plaintiff,  and  that  he  is 
entitled  to  the  possession  of  the  premises,  and  that  there  be  a  stay  of 
execution  for  ten  days,  is  not  in  accordance  with  the  statute.  The 
statute  is  mandatory,  and  prescribes  in  terms  what  the  judgment  shall 
be — that  is,  that  the  plaintiff  shall  have  judgment  for  the  possession 
of  his  premises  and  for  his  costs.^^^  Where  a  landlord  gets  judgment 
for  possession  against  a  tenant,  and  pending  an  appeal  by  the  tenant 
the  term  claimed  by  him  expires  and  he  vacates  the  premises,  the  land- 
lord is  entitled  to  a  judgment  for  damage,  even  though  he  no  longer 
requires  a  judgment  for  restoration  of  possession.  On  the  facts  as 
they  were  at  the  time  the  action  was  instituted,  the  complainant  was 
entitled  not  only  to  a  judgment  of  restitution,  but  also  to  damages 
and  costs.  His  claim  to  these  was  an  equitable  one  on  the  facts  of  the 
case,  and  nothing  was  done  by  him  since  which  detracted  from  his 

640  Torrent   v.    Muskegon   &c.    Co.,  "^  Daniels  v.  Edwards,  72  Ga.  196. 

22  Mich.  354;   Huff  v.  Markham,  71  "=  St.  Louis  &c.  Yards  v.  Wiggins 

Ga.  555.  Ferry  Co.,  102  111.  514;    Illinois  &c. 

'''Ward  v.   Dewey,   16  N.  Y.  519,  R.  Co.  v.  Baltimore  &c.  R.  Co.,  23 

522;    Crooke  v.   Andrews,   40   N.   Y.  111.  App.  531. 

547;  Palmer  v.  Rich,  12  Mich.  414;  ="  Crow  v.  Cann,  2  Pennew.  (Del.) 

Scofield  V.  City  of  Lansing,  17  Mich.  208. 
437. 


§■  567]  TERMINATION   OF  TENANCY.  640 

equities  in  any  particular.  The  appeal  should  be  tried  and  determined 
on  its  merits.  The  landlord,  if  he  recovers,  will  not  require  process  to 
restore  him  to  possession,  but  his  right  to  recover  his  damages  and 
costs  is  unaffected  by  that  circumstance.^^*  Where  a  landlord  can 
recover  no  damages  on  the  summary  process  under  the  statute  by 
■which  he  regains  possession,  and  it  is  provided  by  such  statute  that 
judgment  recovered  on  that  process  shall  not  be  a  bar  to  an  action  for 
a  trespass  on  the  premises  thereby  recovered,  the  landlord  has  the 
same  remedy  which  was  formerly  open  to  a  demandant  after  a  recov- 
ery in  a  writ  of  entry,  namely,  an  action  of  trespass  for  mesne 
profits.^^^  An  exception  in  a  statute  in  regard  to  the  right  of  a  tenant 
to  retain  possession  pending  an  appeal  provided  that  if  the  action  was 
brought  upon  a  written  lease  executed  by  both  parties  against  a  tenant 
holding  over  after  the  expiration  of  said  lease,  restitution  of  the  prem- 
ises should  be  forthwith.  This  was  held  by  the  Minnesota  court  to 
mean  expiration  in  the  natural  course,  and  not  to  apply  to  a  case 
where  the  lease  expired  because  of  a  breach  of  a  covenant  not  to  sub- 
let. After  expiration  by  lapse  of  time,  the  written  lease  could  afford 
no  pretext  to  the  tenant  for  remaining  in  possession,  while  he  might 
have  a  good  defense  against  the  alleged  breach  of  covenants.^ ^^ 

The  right  and  only  right  of  a  cestui  que  trust  of  a  lessee  would  be 
through  his  trustee.  He  would  have  no  direct  claim  as  tenant  upon 
the  landlord,  and  the  landlord  would  have  none  against  him.  He 
would  not  be  responsible  under  the  lease  to  deliver  up  the  premises  to 
the  lessor  at  its  expiration,  but  at  that  time  all  his  rights  under  it 
through  his  trustee  would  cease,  and  if  he  remained  it  would  be  only 
as  a  tenant  at  sufferance.  So  a  judgment  against  the  trustee  would  be 
a  judgment  against  the  cestui,  and  would  authorize  the  officer  to  re- 
move any  whose  rights  were  dependent  upon  the  trustee.^^^ 

VI.    Emhlements. 

§  567.  The  term  emblements  is  used  to  designate  not  only  certain 
products  of  the  soil,  but  also  the  right  of  a  tenant  to  take  and  carry 
away  such  products  after  his  tenancy  has  ended.  The  vegetable  chat- 
tels called  "emblenjents"  are  the  corn  and  other  growth  of  the  earth 

"*  Peters  v.  Fisher,  50  Mich.  331,  ™  State    v.    Burr,    29    Minn.    432, 

15  N.  W.  496.     See,  Hebron  Church  13  N.  W.  676. 

v.  Adams,  121  Mass.  257.  "^^  Danforth    v.    Stratton,    77    Me. 

^'  Sargent     v.     Smith,     12     Gray  200. 
(Mass.)   426;  Raymond  v.  Andrews, 
6  Cush.  (Mass.)  265. 


■I 
11 


641  EMBLEMENTS.  [§    567 

which  are  produced  annually,  not  spontaneously,  but  by  labor  and  in- 
dustry, and  thence  are  called  "fructus  industriales."^^^  The  term  also 
denotes  the  right  of  a  tenant  to  take  and  carry  away,  after  his  tenancy 
has  ended,  such  annual  products  of  the  land  as  have  resulted  from  his 
own  care  and  labor.^^^  Emblements  are  the  away-going  crop ;  in  other 
words,  the  crop  which  is  upon  the  ground  and  unreaped  when  the 
tenant  goes  away,  his  lease  having  determined;  and  the  right  to  em- 
blements is  the  right  in  the  tenant  to  take  away  the  away-going  crop, 
and  for  that  purpose  to  come  upon  the  land  and  do  all  necessary  things 
thereon.  It  is  the  common  practice  for  the  crop  to  be  termed  the 
away-going  crop  and  the  tenant  the  off-going  tenant.^ ^**  No  right  in 
respect  to  emblements  arises  until  the  seed  is  sown,  and  there  is  no 
principle  of  law  by  which  a  tenant  could  recover  the  cost  of  preparing 
the  ground  for  the  reception  of  the  seed.^^^  The  lessors  of  a  farm 
adjoining  a  river  have  no  right  to  the  driftwood  which  the  lessee  hauls 
upon  the  farm  from  the  river.  The  contiguity  of  the  farm  to  the  river 
gives  the  lessors  no  right  to  the  drift  which  floats  upon  its  surface. 
The  real  owner  of  the  wood  alone  could  disturb  the  lawful  possession 
of  him  who  has  acquired  it.  To  the  driftwood  which  came  down  upon 
the  waters  of  the  river  the  lessors  had  no  title,  and  when  it  was  re- 
covered by  the  tenant,  through  his  own  labor,  they  could  enforce  no 
claim  thereto  against  him.  The  avails  of  his  labors  beyond  what  he 
was  to  do  for  them  would  be  legally  his  own.^*^-  Crude  turpentine, 
which  has  formed  on  the  body  of  the  tree,  and  is  usually  known  as 
"scrape,"  is  personal  property  and  belongs  to  the  person  who  has  law- 
fully produced  it  by  cultivation.  It  is  annual  product  of  labor  and 
industry,  and  although  it  adheres  to  the  body  of  the  tree,  it  is  not  a 
part  of  the  realty.  The  turpentine  crop  may  be  properly  classed  with 
fructus  industrial es,  for  it  is  not  the  spontaneous  product  of  the  trees, 
but  requires  annual  labor  and  cultivation.  Upon  a  similar  principle, 
hops  which  spring  from  old  roots  have  long  been  regarded  as  emble- 
ments.^®^ 

"The  whole  doctrine  of  emblements,"  declares  the  Georgia  court  in 
a  well-considered  case,  "was  based  upon  two  reasons:  (1)  upon  natural 
justice  and  equity;  (2)  upon  grounds  of  public  policy.  The  substan- 
tial merit  of  the  first  reason  assigned  is  apparent;  how  public  policy 

^''Reiff  V.  Reiff,  64  Pa.  St.  134.  ""Dyer  v.  Haley,  29  Me.  277. 

■"^  Black's  Law.  Diet.  ''"'State  v.  Moore,  11  Ired.  L.   (N. 

='°  Clark  V.  Banks,  6  Houst.  (Del.)  Car.)  70;  Lewis  v.  McNatt,  65  N. 
584.  Car.  63. 

'"Price  V.  Pickett,  21  Ala.  741. 
Jones  L.  &  T.— 41 


§    568]  TERMINATION   OF   TENANCY.  643 

was  subserved  by  an  application  of  the  doctrine  is  explained  by  Black- 
stone  when  he  says :  'The  encouragement  of  husbandry,  .  .  .  being 
a  public  benefit,  tending  to  the  increase  and  plenty  of.  provisions, 
ought  to  have  the  utmost  security  and  privilege  that  the  law  can  give 
it.'  "^"^  Where  the  reason  of  the  doctrine  fails,  it  has  no  application, 
as  where  a  tenant  terminates  his  estate  through  his  own  default  or 
misconduct.  In  such  case  the  law  was  suffered  to  apply  in  all  its  vigor, 
whereby  a  growing  crop,  until  actually  severed  from  the  soil,  was  re- 
garded as  a  part  of  the  land  itself,  and  passed  accordingly.  Before  the 
introduction  into  the  law  of  the  doctrine  of  emblements,  the  tenant 
had  no  right  to  the  usufruct  of  the  land  a  single  day  beyond  his  term, 
nor  to  any  profits  thereof  not  arising  strictly  within  the  period  of  his 
right  of  occupancy.  The  doctrine  of  emblements  is  based  and  proceeds 
solely  on  the  idea  that  the  tenant  is  justly  entitled  to  gather  his  crops, 
even  though  his  term  has  expired,  and  without  regard  to  the  question 
whether  such  crops  are  to  be  considered  as  in  the  nature  of  personalty 
or  realty.^*'^ 

However,  there  is  a  recognized  line  of  cases  holding  that  annual 
crops  which  are  the  product  of  industry  and  care,  sown  by  the  owner 
of  the  soil,  are,  while  growing  and  immature,  personal  property.^** 
It  has  been  declared  that  annual  crops  are  regarded,  in  many  respects, 
•  as  personal  property,  liable,  indeed,  to  become  part  of  the  realty,  if 
the  tenant  voluntarily  abandons  or  forfeits  possession  of  the  prem- 
ises.^ ^^ 

§  568.  During  the  continuance  of  his  holding  a  tenant's  right  to 
emblements  is  undoubted.  In  the  absence  of  an  agreement  between 
the  parties  to  a  lease  of  agricultural  land  vesting  the  title  to  the  hay 
produced  thereon  in  the  lessor,  the  law  vests  it  in  the  lessee.^^®  The 
kind  of  hay  known  as  "timothy"  is  an  annual  crop,  and  may  therefore 
be  sold  as  personal  property  f^^  and  if  a  lease  be  made  of  land  while 
such  a  crop  is  growing  on  it,  the  crop  passes  to  the  lessee  in  the  absence 
of  a  reservation  of  it  to  the  lessor."^   Yet  it  has  been  held  in  N'ew 

="  Bagley  v.  Columbus  &c.  R.  Co.,  ="  Carpenter  v.  Jones,  63  111.  517. 

98  Ga.  626,  25  S.  E.  638,  citing  2  Bl.  ^"^  Briggs  v.  Austin,  129  N.  Y.  208, 

Comm.  122.  29  N.  E.  4;   Felch  v.  Harriman,  64 

="=  Bagley  v.  Columbus  &c.  R.  Co.,  N.  H.  472,  13  Atl.  418,  holding  the 

98  Ga.  626,  25   S.  E.  638;   Kerr  on  same  in  regard  to  appellee. 

Real  Prop.,  §§  50-51.   See,  Preston  v.  ''^  Garth  v.  Caldwell,  72  Mo.  622, 

Ryan,  45  Mich.  174,  7  N.  W.  819.  627. 

^^•'"Mabry  v.  Harp,  53  Kan.  398,  36  ""  Hosli  v.  Yokel,  57  Mo.  App.  622; 

Pac.  743;  Polley  v.  Johnson,  52  Kan.  Tuttle  v.  Langley;  68  N.  H.  464,  39 

478,  35  Pac.  8;  Caldwell  v.  Custard,  Atl.  488. 
7  Kan.  303. 


643  EMBLEMENTS.  [§    5G8 

Hampshire  that  a  tenant,  where  there  is  no  positive  agreement  dis- 
pensing with  the  engagement  to  cultivate  his  farm  in  a  husbandlike 
manner,  is  bound  to  spend  the  hay  and  other  like  produce  upon  it  as 
the  means  of  preserving  and  continuing  its  capacity  of  production.^' ^ 
By  a  condition  that  hay  raised  upon  a  leased  farm  should  be  consumed 
on  the  farm,  the  tenant's  interest  in  it  may  be  so  limited  that  he  can- 
not convey  to  a  mortgagee  a  right  to  remove  it  and  consume  it  else- 
where. So  if  a  mortgagee  under  such  circumstances  acquired  any 
right  by  his  mortgage,  it  was  a  right  to  consume  the  hay  on  the  farm, 
which  he  abandoned  when  he  refused  to  exercise  it.^'^  Under  the  Iowa 
code  a  mere  field  cropper  for  a  share  of  the  crop  has  no  right  to  turn 
cattle  upon  the  land  after  the  crop  is  harvested,  and  in  no  case  has  he 
a  right  to  pasture  the  land  after  the  first  of  December.^'^ 

A  lease  of  premises  with  the  right  of  immediate  possession  and  en- 
tire enjoyment  of  the  issues  and  profitB  would  carry  with  it  the  emble- 
ments unless  they  were  reserved  in  the  lease.  So  the  words  in  the  lease, 
"and  the  said  lessee  is  to  have  and  own  all  crops  that  are  now  put  in 
or  growing  on  said  premises,"  would  add  nothing  to  the  rights  of  the 
lessee  under  the  lease. ^'*  This  must  necessarily  result  from  the  rules 
of  law  that  the  tenant  is  vested  with  all  the  rights  incident  of  posses- 
sion, and  the  use  and  enjoyment  of  all  the  privileges  appurtenant  to 
the  leased  premises,  and  may  maintain  an  action  against  any  person 
who  disturbs  his  possession  or  trespasses  on  the  premises,  even  though 
it  be  the  landlord.  The  latter  has  no  right  to  enter,  during  the  term, 
to  repair  or  remove  crops,  unless  he  has  stipulated  in  the  lease  for  such 
right.  No  one  would  contend  that  a  crop  of  grass,  growing  upon  the 
premises  when  the  lease  was  executed,  does  not  pass  to  the  lessee,  who 
may  lawfully  pasture  his  cattle  upon  it  or  harvest  it  for  his  own  use. 
The  fact  that  the  crop  is  wheat  instead  of  grass  cannot  change  the 
rule."^  But  in  the  sale  of  real  estate  in  fee  or  for  years,  the  growing 
crops  may  be  considered  by  the  parties  as  personal  property,  and  so 
separated,  in  contemplation  of  law,  as  not  to  pass  by  the  deed  or  lease. 
Parol  evidence  may  be  introduced  to  show  that  the  crop  growing  on 
the  land  at  the  time  when  the  lease  was  made  was  treated  and  consid- 
ered as  personalty,  and  not  intended  to  be  conveyed  by  the  lease."  "^ 

"^Moulton  v.  Robinson,  27  N.  H.  ^"  Emery  v.  Fugina,  68  Wis.  505, 

550,  561.  32  N.  W.  236;    Hisey  v.  Troutman, 

"=  Jewell   V.   Woodman,   59   N.   H.  84  Ind.  115;  Baker  v.  Jordan,  3  Ohio 

520.  St.    438;     Youmans    v.    Caldwell,    4 

™Kyte  V.  Keller,  76  Iowa  34,  39  Ohio  St.  71. 

N.  W.  928;    Tantlinger  v.   Sullivan,  ^'O  Baker  v.  Jordan,  3  Ohio  St.  438, 

80  Iowa  218,  45  N.  W,  765.  Youmans  v.  Caldwell,  4  Ohio  St.  71. 

"*  Edwards  v.  Perkins,  7  Ore.  149. 


§   569]  TEEMINATION"  OF  TENANCY.  644 

§  569.  The  doctrine  of  emblements  is  founded  entirely  on  the  un- 
certainty of  the  termination  of  the  tenant's  estate.  Where  that  is 
certain,  there  exists  no  title  to  emblements.  It  is  the  tenant's  own 
folly  to  sow  when  he  knows  that  his  term  will  expire  before  he  can 
reap.^^'^  This  result  can  only  be  altered  by  the  custom  of  the  country, 
or  by  express  agreement  between  the  parties,^^*  Biit  a  custom,  to  be 
valid,  must  be  as  old  as  the  common  law ;  according  to  one  theory,  it 
must  be  immemorial.  If  a  particular  custom  be  proved  to  be  imme- 
morial, it  necessarily  excludes  the  general  custom  or  common  law,  for 
two  opposite  and  inconsistent  customs  cannot  have  immemorially 
existed.  In  the  settlement  of  the  United  States  the  colonists  brought 
with  them  the  common  law  or  general  customs  of  England,  but  none 
of  the  particular  customs.  The  common  law  became  the  rule  of  the 
whole  country,  and  gave  the  rule  to  every  part  of  it,  and  by  that  law 
the  off-going  tenant  was  not  entitled  to  the  way-going  crop.  Any 
practice  or  usage,  however  general,  introduced  into  this  country  since 
its  settlement,  and  in  opposition  to  the  common  law,  can  have  no  force 
on  the  ground  of  custom,  because  it  lacks  the  essential  ingredient  of  a 
good  custom — it  is  not  immemorial.  It  is  clear  that  it  could  not  have 
existed  at  any  time,  even  as  a  recent  custom,  until  after  the  settlement 
of  the  country,  and  after  the  common  law  had  attached  to  every  part 
of  it.  And  nobody  will  contend  that  a  recent  usage  or  practice,  however 
general,  will  change  the  common  law.^^^ 

In  Delaware,  certain  English  authorities  have  been  recognized,  and 
it  has  been  declared  by  the  courts  of  that  state  that  there  has  always 
been  a  custom,  with  respect  to  agricultural  holdings,  that  the  tenant, 
if  he  sowed  in  the  fall  a  crop  of  grain  which  required  for  its  ripening  a 
period  greater  than  the  unexpired  time  of  the  lease,  should  have  the 
right  to  enter  upon  the  land  when  it  matured  and  harvest  it.  The 
ground  upon  which  it  was  sowed  was  treated  as  being  still  in  the  right- 
ful possession  of  the  tenant,  so  much  so  that  an  action  of  trespass 
would  lie  for  him  against  any  one  who  entered  upon  it.^®°  In  Pennsyl- 
vania, also,  a  tenant  may  support  an  action  of  trespass  qnare  clausum 
f regit  against  his  landlord  for  an  injury  done  to  his  way-going  crop, 

^'Dircks   v.   Brant,    56    Md.   500;  ^"  Dircks  v.  Brant,  56  Md.  500. 

Harris    v.    Carson,    7    Leigh    (Va.)  '*'"  Harris  v.  Carson,  7  Leigh  (Va.) 

632;  Mason  v.  Moyers,  2  Rob.  (Va.)  632;  Mason  v.  Moyers,  2  Rob.  (Va.) 

606;   Howell  v.  Schenck,  24  N.  J.  L.  606. 

89;  Whitmarsh  v.  Cutting,  10  Johns.  '  ='» Clark  v.  Banks,  6  Houst.  (Del.) 

(N.  Y.)    360;    Sanders  v.  Ellington,  584;     Citing    Johns    v.    Whitley,    31 

77  N.  Car.  255;  Hall  v.  Durham,  117  Wils,  65;  Boraston  v.  Green,  16  East] 

Ind.   429,   20  N.  E.   282;    Gossett  v.  71. 
Drydale,  48  Mo.  App.  430. 


6-io  EMBLEMENTS.  [§    569 

which  belongs  to  the  tenant  by  a  custom  of  the  country  after  the  ex- 
piration of  the  lease  and  after  he  has  removed  from  the  premises.^® ^ 
For  by  custom  in  that  state  the  right  to  emblements  is  extended  to 
tenancies  for  a  fixed  and  determinate  period,  so  far  as  relates  to  a 
crop  put  in  in  the  fall  when  the  term  ends  in  the  following  spring. 
In  such  cases  the  tenant  has  the  right  to  reenter  after  the  expiration 
of  his  term  to  cultivate  and  remove  the  crop  f^^  and  the  tenant  has  a 
right  to  the  straw  as  well  as  to  the  grain  ;^^3  but  if  a  tenant  put  in  a 
crop  in  the  early  spring,  when  his  tenancy  is  to  end  the  same  spring  or 
summer,  before  the  crop  can  mature,  he  is  not  entitled  to  the  crop, 
which  goes  to  the  lessor.^^* 

In  New  Jersey  a  tenant  is  by  custom  entitled  to  enter  after  the  ex- 
piration of  his  term  and  reap  his  way-going  crop.  The  custom  is 
established  for  the  benefit  and  encouragement  of  agriculture,  and  is 
based  upon  the  principle  that  he  who  sows  in  peace  shall  reap  in  peace. 
Its  object  is  to  give  the  tenant  the  full  benefit  of  the  crops  for  the  year 
of  which  he  would  otherwise  be  deprived  when  they  do  not  ripen  until 
after  the  expiration  of  the  term.  The  rule  does  not  apply  to  a  spring 
crop,  as  of  oats,  which  is  regarded  as  the  product  of  the  second  year, 
unless  it  is  expressly  provided  for  by  the  lease.  ^^^  A  right  conferred 
by  a  lease  to  sow  a  crop  which  will  not  mature  till  after  the  termina- 
tion of  the  lease  carries  with  it  the  implied  power  to  enter  and  harvest 
the  crop  at  maturity.^*^  A  privilege  of  sowing  a  crop  which  would 
mature  after  the  end  of  the  term  would  apply  after  a  renewal  term  as 
well  as  after  the  original  term.  When  it  has  been  ascertained  what 
were  the  tenant's  rights  the  first  year,  it  is  also  determined  what  they 
were  the  second  and  third ;  for  it  is  always  a  presumption  that  a  lease 
for  one  year  with  the  privilege  of  several  is  to  be  continued  on  the 
same  terms,  and  with  precisely  the  same  rights  and  privileges  to  the 
tenant  as  during  the  first  year.^*'^ 

The  rule  in  regard  to  a  term  for  years  applies  to  a  tenancy  from 
year  to  year.  A  tenant  from  year  to  year  is  not  entitled  to  emblements, 

'"Forsythe    v.     Price,     8     Watts  (Pa.)   475,  487;   Biggs  v.  Brown,  2 

(Pa.)   282.  S.  &  R.  (Pa.)  14. 

"=Demi    v.    Bossier,    1    P.    &    W.  '^"'^  Howell  v.  Schenck,  24  N.  J.  L. 

(Pa.)  224;  Stultz  v.  Dickey,  5  Binn.  89;  Van  Doren  v.  Everitt,  5  N.  J.  L. 

(Pa.)   285.  460;    Corle  v.  Monkhouse,   47   N.   J. 

''"^Rank    v.    Rank,    5    Barr    (Pa.)  Eq.  73,  20  Atl.  367,  citing  Wiggles- 

211;  Craig  v.  Dale,  1  W.  &  S.  (Pa.)  worth  v.  Dallison.  Doug.  201. 

509;    Iddings  v.   Nagle,   2   W.   &   S.  ■''"  Hudson  v.  Porter,  13  Conn.  59; 

(Pa.)   22.  Van  Doren  v.  Everitt,  5  N.  J.  L.  460; 

^^*Demi    v.    Bossier,    1    P.    &    W.  Boraston  v.  Green,  16  East  71. 

(Pa.)  224;  Carson  v.  Blazer,  2  Binn.  ="  Brown  v.  Parsons,  22  Mich.  24. 


§■   570]  TEEMINATIOX   OF   TENANCY.  646 

for  he  cannot  be  forced  to  leave  unless  he  has  six  months'  notice  before 
the  end  of  the  year,  and  that  puts  him  on  the  footing  of  a  tenant  for 
years,  and  there  is  no  occasion  to  interfere  with  the  rights  of  the 
owner  of  the  land  under  the  general  doctrine  by  allowing  him  to  come 
in  on  the  doctrine  of  emblement*.^^* 

§  570.  The  common-law  rule  is  that  every  one  who  has  an  uncer- 
tain estate  or  interest  in  land,  if  his  estate  determines  by  act  of  God 
before  severance  of  the  crop  shall  have  emblements,  or  they  go  to  his 
executor  or  administrator.^*^  Crops  raised  upon  land  during  a  ten- 
ancy at  will  belong  to  the  tenant,  although  the  landlord  brings  the 
holding  to  an  end  prior  to  the  maturity  of  the  crops.^^°  Littleton, 
speaking  of  tenancies  at  will,  says :  "If  the  lessee  soweth  the  land,  and 
the  lessor,  after  it  is  sown  and  before  the  corne  is  ripe,  put  him  out, 
yet  the  lessee  shall  have  the  corne,  and  shall  have  free  entree,  egresse, 
and  regresse  to  cut  and  carry  away  the  corne,  because  he  knew  not  at 
what  time  the  lessor  would  enter  upon  him."^"  Thus  it  seems  clear 
that  a  tenant  at  will,  having  planted  during  his  tenancy,  is  entitled  to 
the  product  of  his  planting.  Neither  party,  by  determining  the  ten- 
ancy, can  unfairly  prejudice  the  other  in  regard  to  rents  or  emble- 
ments. If  the  lessee  terminate  before  the  day  on  which  rent  is  due,  he 
must  pay  up  the  rent  to  that  day ;  when  the  lessor  determines  the  rent 
at  such  a  time,  he  loses  his  rent.  If  the  lessor  determines  the  tenancy 
before  the  wheat  or  other  produce  is  reaped  or  gathered,  the  lessee 
shall  have  the  emblements,  and  free  ingress,  egress  and  regress  to  take 
them  away ;  but  when  the  lessee  determines  the  tenancy  at  such  a  time 
he  loses  the  emblements.^^^  T\Tiere  a  dowress,  in  possession  of  land  on 

=««Gossett  V.  Drydale,  48  Mo.  App.  296;  Davis  v.  Brocklebank,  9  N.  H. 

430;     Sanders    v.    Ellington,    77    N.  73;  Graves  v.  Weld,  5  B.  &  Ad.  105: 

Car.  255.  Bittinger  v.   Baker,   29    Pa.   St.    66; 

='"  Spencer     v.     Lewis,     1     Houst.  Hunter  v.  Jones,  7  Phila.  (Pa.)  233, 

(Del.)    223;    Heavilon   v.    Farmers'  s.  c.  2  Brewst.  (Pa.)  370. 

Bank,  81   Ind.  249;    Shaffer  v.   Ste-  '^  Plummer  v.   Currier,   52  N.  H. 

vens,   143   Ind.   295,   42   N.   E.   620;  287,  296;  Sherburne  v.  Jones,  20  Me. 

Brown    v.    Thurston,    56    Me.    126;  70;    Rising   v.    Stannard,    17    Mass. 

Talbott  V.  Hill,  68  111.  106;    Bevans  282,    287;    Ellis    v.    Paige,    1    Pick. 

V.    Briscoe,   4    H.   &   J.    (Md.)    139;  (Mass.)    43,   49;    Towne  v.  Bowers, 

Towne  v.  Bowers,  81  Mo.  491;  Reilly  81  Mo.  491;   Reilly  v.  Ringland,  39 

V.   Ringland,   39   Iowa   106,   s.   c.   44  Iowa  106,  s.  c.  44  Iowa  422. 

Iowa  422;  Dollar  v.  Roddenbery,  97  '^^^  Litt,  ch.  8,  §  68.     See,  Co.  Litt. 

Ga.  148,  25  S.  E.  410;  Corle  v.  Monk-  55a. 

house,  417  N.  J.  Eq.  73,  20  Atl.  367;  ==•=  Brown  v.  Thurston,  56  Me.  126; 

King    V.    Foscue,    91    N.    Car.    116;  Davis    v.    Thompson,    13    Me.    209; 

Plummer  v.  Currier,  52  N.  H.  287,  Sherburne  v.  Jones,  20  Me.  70;   De 


647  EMBLEMENTS.  [§    571 

which  she  had  sown  a  crop  of  wheat,  in  a  suit  for  partition  consented 
that  her  dower  in  the  premises  might  be  sold,  which  was  accordingly 
done,  and  she  received  one-seventh  of  the  proceeds  of  the  sale  in  lieu 
of  dower,  it  was  held  that  she  could  not  claim  emblements,  as  her 
estate  was  terminated  by  her  own  act  in  consenting  to  the  sale  and 
taking  the  proceeds.^^^ 

Bad  husbandry  does  not  deprive  the  tenant  of  his  right  to  the  way- 
going crop,^^*  but  when  he  has  been  ejected  for  breach  of  condition  he 
loses  his  right  to  emblements.^ ®^ 

§  571.  An  executor  or  a  lessee  of  a  tenant  for  life  is  entitled  to 
crops  which  were  planted  during  his  life  time  but  did  not  mature 
till  after  his  death.*^*'  "This  is  not  only  proper  to  a  lessee  at  will," 
says  Lord  Coke,  "that  when  the  lessor  determines  his  will  that  the 
lessee  shall  have  the  corne  sowne,  etc.,  but  to  every  particular  tenant 
that  hath  an  estate  incertaine,  for  that  is  the  reason  which  Littleton 
expressed  in  these  words,  because  he  hath  no  certaine  or  sure  estate. 
And  therefore  if  tenant  for  life  soweth  the  ground  and  dieth,  his 
executors  shall  have  the  corn  for  that  his  estate  was  uncertaine  and 
determined  by  the  act  of  God.  And  the  same  is  the  law  of  the  lessee 
for  years  of  the  tenant  for  life."^"^  It  being  settled  that  the  tenant 
for  life  and  his  under-tenant  for  years  are  entitled  to  the  emblements, 
it  is  equally  well  settled  that  he  has  the  right  to  ingress,  egress  and 
regress  to  preserve  the  crop,  to  gather  it,  and  to  carry  it  off.  Where  a 
tenant  for  life  dies  in  possession,  the  reversioner  or  remainderman  is 
not  entitled  to  the  occupation  of  the  lands  on  which  a  crop  is  growing 
until  that  crop  is  taken  off,  or  a  reasonable  time  is  given  for  taking  it 
off ;  and  the  law  must  be  the  same  where  the  lands  are  leased  for  years 
to  an  under-tenant,  who  has  all  the  rights  which  the  executors  of 
a  tenant  for  life  would  have  had  if  he  had  died  in  possession.^''*   This 

Bow   V.    Colfax,    10    N.    J.    L.    151;  fax,    10    N.    J.    L.    151;    Howell    v. 

Howell  V.  Schenck,  24  N.  J.  L.  89;  Schenck,  24  N.  J.  L.  89,  93;  Bradley 

Towne  v.  Bowers,  81  Mo.  491;  Heav-  v.  Bailey,  56  Conn.  374,  15  Atl.  746; 

ilon  V.  Farmers'  Bank,  81  Ind.  249;  King  v.  Whittle,  73  Ga.  482;   Perry 

Reilly  v.  Ringland,  39  Iowa  106,  s.  c.  v.  Hamilton,  138  Ind.  271,  35  N.  E. 

44  Iowa  422.  836;    Dorsett  v.  Gray,  98   Ind.   273; 

'"'  Talbot  v.  Hill,  68  111.  106.  Shaffer  v.  Stevens,  143  Ind.  295,  42 

""Clark  v.  Harvey,  4  P.  F.  Smith  N.  E.  620;   Gee  v.  Young,  1  Hayw. 

(Pa.)  142.  (N.  Car.)   17;   Pouidextex  v.  Black- 

'"^  Hunter     v.     Jones,     2     Brewst.  burn,  1  Ired.  Eq.    (N.  Car.)    286. 
(Pa.)    370.  ="Co.  Litt.  55b. 

^'^Corle   V.   Monkhouse,    47    N.    J.         ="' Bevans   v.    Briscoe,   4   H.   &   J. 

Eq.  73,  28  Atl.  367;   De  Bow  v.  Col-  (Md.)   139. 


§    572]  TERillXATIOX    OF    TEXAXCT.  648 

rule  has  been  applied  to  a  case  where  a  lessee  of  a  tenant  for  life  sowed 
the  land  while  he  had  reason  to  suppose  that  the  latter  was  near  his 
death  with  a  fatal  disease.  To  hold  that  this  right  may  be  defeated 
after  the  tenant's  death,  by  evidence  of  his  condition  of  health,  or  by 
his  declarations  or  those  of  his  lessee  imputing  a  belief  or  knowledge 
that  his  life  would  not  continue  until  harvest  time,  would  in  many 
cases  subvert  an  important  object  of  the  rule, — ^the  encouragement  of 
husbandry,  and  open  a  fruitful  source  of  unseemly  litigation.  A  tenant 
in  failing  health  would  naturally  hesitate  to  put  in  crops  which  might 
be  successfully  claimed  by  his  successor  in  title,  or  in  respect  to  which 
his  estate  might  be  involved  in  litigation.^^^  If  the  husband  of  a 
tenant  for  life  is  in  possession  and  tills  the  land,  and  she  dies  before 
the  crop  is  gathered,  he  takes  the  whole  as  emblements,  and  it  is  not  a 
case  for  apportionment  under  the  Delaware  statute,  which  only  ap- 
plies in  case  of  demise,  as  where  the  tenant  for  life  has  rented  out  the 
land,  and  his  life  estate  determines  during  the  tenancy.^""  The  rule 
has  also  been  applied  in  the  case  of  a  man  who  married  a  dowress  who 
died  after  a  crop  had  been  sown.  It  was  held  that  the  second  husband 
was  entitled  to  reap  the  crop  he  had  planted  before  the  death  of  his 
wife.««i 

'      §  572.    Rights  of  lessee  under  lease  subject  to  a  prior  lien. — A 

mortgagor  compelled  to  surrender  the  estate  is  not,  like  a  tenant  at  will, 
entitled  to  the  emblements,  though  produced  by  the  mortgagor's  labor. 
The  mortgagee  may  evict  him  without  notice  and  retain  the  emble- 
ments.^°2  A  lessee  holding  under  the  mortgagor  by  a  lease  granted  sub- 
sequently to  the  mortgage,  and  without  the  mortgagee's  concurrence, 
has  no  greater  rights  than  the  mortgagor ;  and  when  evicted  by  the  par- 
amount title  of  the  mortgagee,  as  he  may  be  without  notice,  he  cannot 
retain  the  emblements.®*'^  A  purchaser  at  a  foreclosure  sale  is  entitled 
to  the  crops  growing  at  the  time  of  the  sale,  and  may  maintain  trespass 
against  the  mortgagor  or  his  lessee  for  taking  and  carrying  them 
away,«°*  or  replevin  for  the  property.®**^   If  the  mortgagee  become  the 

'^  Bradley  v.  Bailey,  56  Conn.  374,  '"'  Jones    v.     Thomas,     8     Blackf . 

15  Atl.  746.  (Ind.)  428;  Anderson  v.  Strauss,  98 

"^Spencer     v.     Lewis,     1     Houst.  111.  485. 

(Del.)   223.  «^  Shepard   v.   Philbrick,   2   Denio 

•"iRing  V.  Whittle,  73  Ga.  482.  (N.  Y.)    174;   Downard  v.  Groff,  40 

""-Gilman   v.   Wills,    66    Me.    273;  Iowa  597. 

Downard    v.    Groff,    40    Iowa    597;  •"«  Scriven  v.  Moote,  36  Mich.  64; 

Coor  v.  Smith,  101  N.  Car.  261,  7  S.  Aldrich   v.    Reynolds,    1    Barb.    Ch. 

E.  669;  Jones  v.  Hill,  64  N.  Car.  198.  (N.  Y.)  613. 


I 


G49  EMBLEMEXTS.  [§    572 

purchaser  at  such  sale,  he  may  maintain  the  action.^"^  Moreover,  the 
purchaser  at  the  foreclosure  sale  may  by  injunction  restrain  the  mort- 
gagor from  taking  the  crops,  and  may  restrain  his  creditor  from  pro- 
ceeding under  execution  to  levy  upon  them.^^^  But  a  lessee  of  land 
encumbered  with  a  judgment  prior  to  the  lease,  under  which  the  prem- 
ises are  levied  on  and  sold,  is  entitled  to  the  way-going  crop  sown  by 
him  prior  to  the  levy  and  condemnation,  in  preference  to  the  sheriff's 
vendee.  By  statute  in  Pennsylvania  the  tenant  was  required  to  give  up 
possession  three  months  after  the  purchaser  required  him  to  do  so  and 
to  pay  him  rent  for  the  use  of  the  land.  This  law  makes  the  lessee, 
under  a  lease  of  later  date  than  the  lien,  a  tenant  at  will  of  the  pur- 
chaser under  such  lien ;  and  it  follows  on  well-settled  common-law 
principles  that  if  he  had  a  crop  in  the  ground  before  he  was  notified 
of  the  landlord's  election  to  determine  the  tenancy,  he  will  have  a 
right  to  take  it  away.  It  is  essentially  a  lease  for  years,  but  subject  to 
be  determined  by  an  uncertain  event  depending  on  the  will  of  others, 
that  is,  on  the  will  of  lien  creditors  and  the  purchaser  under  their 
liens.  If  a  tenant  subject  to  liens  were  not  entitled  to  the  privileges 
of  a  tenant  at  will,  then  liens  would  become  a  nuisance,  preventing  the 
leasing  of  lands  encumbered  by  them,  and  requiring  leases  to  be  made 
at  ruinous  rates,  because  of  the  risk  that  is  to  be  run  by  the  tenant. ''*'* 
Furthermore,  it  has  been  declared  to  be  right  to  treat  mortgage  and 
judgment  liens  as  entirely  equivalent  in  their  effect  upon  the  tenant's 
rights,  where  both  of  them  are  mere  liens  upon  the  land  and  not  titles 
to  it.  In  states  where  a  mortgage  is  treated  as  a  title  to  land,  and  not 
as  a  lien,  it  is  natural  enough  that,  on  the  foreclosure,  the  tenant  loses 
his  crop ;  for  he  is  considered  as  without  title,  and  the  mortgagee  enters 
by  paramount  title  and  takes  all.^"^  But  in  Ohio,  for  example,  it  has 
been  held  that  a  tenant's  growing  crop  is  safe  even  against  a  mort- 
gage ;®^*^  but  this  doctrine  has  been  declared  to  rest  upon  the  Ohio  ap- 

«^Lane  v.  King,  8  Wend.   (N.  Y.)  «°°  Bittinger  v.   Baker,   29   Pa.   St. 

584,  24  Am.  Dec.  105.  66. 

^"^  Crews    v.    Pendleton,    1    Leigh  ""  Houts  v.  Showalter,  10  Ohio  St. 

(Va.)  297,  19  Am.  Dec.  750.  124;  Cassilly  v.  Rhodes,  12  Ohio  88. 

°"'  Bittinger  v.   Baker,  29   Pa.   St.  In  the  case  of  Heavilon  v.  Farmers' 

66,  overruling  Sallada  v.   James,   6  Bank,  81  Ind.  249,  the  court  refers 

Barr    (Pa.)    144;    Groff  v.  Levan,  4  to  the  case  of  Jones  v.  Thomas,  8 

Harris   (Pa.)   179.     The  doctrine  of  Blackf.  428,  saying:    "When  Jones  v. 

the   principal   case   was    recognized  Thomas,  supra,  was  decided,  it  was 

and  followed   in  Dollar  v.  Rodden-  the    established    doctrine    here,    as 

bery,  97  Ga.  148,  25  S.  E.  410.     See  elsewhere,   that   a   mortgage   trans- 

also.   Miller   v.    Clement,   4   Wright  ferred    the   title   to   the    mortgagee 

(Pa.)  484.  and,  after  condition  broken,  if  not 


573] 


TERMIXATIOX    OF    TEXAXCT. 


650 


praisement  law.^^^  The  reasons  given  for  this  doctrine  apply  to  the 
landlord's  share  where  a  crop  is  put  in  by  the  tenant  on  the  shares. 
As  a  general  rule,  a  purchaser  is  entitled  to  rent  coming  due  after 
title  is  vested  in  him,  but  a  well-defined  exception  to  the  rule  has  been 
recognized  in  Ohio  in  the  case  of  a  judicial  sale.^^^ 

In  Nebraska  the  owner  of  land  sold  on  execution  retains  the  right 
of  possession,  and  is  entitled  to  the  usufruct  of  such  land  until  con- 
firmation of  the  sale,  so  that  a  judgment  debtor  is  not  accountable  to 
the  purchaser  for  hay  cut  upon  the  land  after  sale  and  before  con- 
firmation.^^^  It  has  also  been  held  in  that  jurisdiction  that  a  mature 
crop  of  corn  standing  upon  land  sold  at  judicial  sale,  and  not  taken 
into  account  by  the  appraisers,  did  not  pass  to  the  purchaser,  but  re- 
mained the  property  of  the  mortgagor,  who  had  planted  and  cultivated 
it.^"  So  where  a  purchaser  at  a  foreclosure  sale  planted  and  cultivated 
did  not  obtain  possession  of  the  land,  but  permitted  the  tenant  to 
retain  possession,  notifying  him  that  he  must  pay  rent  in  money  or  in 
kind,  the  tenant  was  held  to  be  entitled  to  the  crop."^ 

§  573.  An  outgoing  tenant  in  agriculture  is  not  entitled  to 
manure  made  on  the  farm,  even  though  it  is  made  by  his  own  cattle 


before,  enabled  him  to  maintain 
ejectment,  and  this  led  inevitably 
to  the  conclusion  in  that  case.  The 
rule,  now  well  established,  however, 
is,  that  a  mortgage  creates  no  estate 
in  the  mortgagee,  but  confers  on 
him  only  a  lien  on  the  estate  of  the 
mortgagor,  which  estate  by  force 
of  the  mortgage,  can  be  transferred 
to  the  mortgagee  only  by  a  fore- 
closure and  sale  according  to  law. 
When  such  foreclosure  and  sale  can 
or  will  be  accomplished  in  any  case, 
cannot  be  anticipated,  and  so  the 
term  of  the  tenancy  being  uncertain, 
the  case  comes  under  the  general 
rule  already  stated;  besides,  the 
statute  of  redemption  now  prolongs 
the  right  of  possession  of  the  land- 
owner or  occupant  beyond  the  time 
of  sale,  whether  upon  execution  or 
decree,  for  one  year.  When  that 
year  will  terminate  cannot  be 
known,  of  course,  until  the  sale  has 


been  made,  or  at  least  advertised. 
After  a  sale  has  been  made,  or  per- 
haps advertised,  it  would  seem  that, 
as  against  the  purchaser,  the  tenant 
who  would  sow  must  do  it  at  his 
peril."  In  Hall  v.  Durham,  117  Ind. 
429,  it  was  held  that  the  rule  of 
Jones  V.  Thomas,  supra,  applied 
with  full  force  as  to  crops  sowed 
upon  the  land,  after  deed  issues, 
without  the  consent  of  the  pur- 
chaser, even  if  it  did  not  apply  to 
crops  sowed  before  with  the  knowl- 
edge that  they  will  not  ripen  and 
cannot  be  harvested  till  after  the 
deed  issues. 

""  Downard  v.  Groff,  40  Iowa  597. 

«"  Albin  V.  Riegel,  40  Ohio  St.  339. 

«"Yeazel  v.  White,  40  Neb.  432, 
58  N.  W.  1020. 

"*Foss  V.  Marr,  40  Neb.  559,  58 
N.  W.  1020. 

"^Monday  v.  O'Neil,  44  Neb.  724, 
63  N.  W.  32. 


f 


651  .  EMBLEMENTS.  [§573 

and  from  his  own  fodder.^^"  The  removal  by  tenant  at  will  of  manure 
which  has  been  manufactured  by  him  on  the  premises  in  his  occupancy, 
in  due  course  of  husbandry,  is  a  permanent  injury  to  the  reversioner ; 
it  is  in  law  voluntary  waste;  and  for  such  an  injury  the  owner  may 
maintain  trespass.^^''  Manure  made  upon  a  farm  in  the  ordinary  man- 
ner, from  the  consumption  of  its  products,  is  regarded  in  this  country 
as  belonging  to  the  realty,  and  would  pass  with  the  farm  if  sold,  and 
may  not  be  removed  by  a  tenant  in  the  absence  of  any  special  contract 
to  the  contrary.®^*  The  tenant  can  neither  remove  the  manure  nor  sell 
it  to  be  removed,  and  such  sale  will  vest  no  property  in  the  vendee. 
The  rule  here  adopted  is  not  considered  as  applying  to  manure  made 
in  a  livery  stable,  or  in  any  manner  not  connected  with  agriculture 
and  out  of  the  course  of  husbandry.  In  such  cases  the  reason  of  the 
rule  does  not  apply,  and  the  lessor  has  no  claim  to  the  manure,  except 
such  as  may  result  from  express  contract. ®^^  The  New  Hampshire 
court  were  not  prepared  to  say  that  manure  made  from  eel  grass  gath- 
ered from  the  banks  of  a  river  on  which  a  farm  lies  would  stand  on 
this  ground.  This  material  was  to  be  regarded  not  as  a  product  of  the 
farm  to  be  sold  off  by  the  tenant  like  grain  or  fruit,  but  as  a  fertilizer, 
like  muck  or  sea-weed,  which  the  tenant  might  lawfully  use  to  enrich 
his  land,  but  in  which  his  interest  was  qualified  and  not  absolute.*'^" 

The  general  rule  is  not  applicable  to  land  used  as  a  corral  or  pen  for 
herding  large  numbers  of  cattle,  brought  thither  to  be  slaughtered,  and 
fed  with  fodder  brought  from  elsewhere.  The  land  furnished  nothing 
for  the  support  of  the  cattle,  and  it  was  not  exhausted  by  cultivation. 
The  tenant  was  not  occupying  the  land  under  a  farming  lease,  and  the 
rule  governing  the  case  of  a  tenant  under  a  farming  lease  is  founded 
on  facts  and  circumstances  wholly  different.*'-^    But  it  does  not  pre- 

'"Lassell    v.    Reed,    6    Me.    222;  Proctor,  2  Chipm.    (Vt.)    108;    Ford 

Lewis    V.    Jones,    17    Pa.    St.    262;  v.  Cobb,  20  N.  Y.  344;    Goodrich  v. 

Wetherbee  v,  Ellison,  19  Vt.  379.  Jones,  2  Hill    (N.  Y.)   142;   Middle- 

"' Perry  v.  Carr,  44  N.  H.  118.  brook  v.  Corwin,  15  Wend.   (N.  Y.) 

818  Fay  V.  Muzzey,  13  Gray  (Mass.)  169;     Pulteney    v.    Shelton,    5    Ves. 

53;     Daniels     v.     Pond,     21     Pick.  147;  Onslow's  Case,  16  Ves.  173. 

(Mass.)    367;    Lewis  v.   Lyman,   22  ''^'' Daniels     v.     Pond,     21     Pick. 

Pick.   (Mass.)   437;   Lassell  v.  Reed,  (Mass.)  367;   Lassell  v.  Reed,  6  Me. 

6  Me.  222;   Gallagher  v.  Shipley,  24  222;  Corey  v.  Bishop,  48  N.  H.  146; 

Md.  418;    Bonnell  v.  Allen,  53   Ind.  Needham  v.  Allison,  24  N.  H.  355; 

130;  Conner  v.  Coffin,  22  N.  H.  538,  Plumer  v.  Plumer,  30  N.  H.  558. 

541;    Plumer   v.    Plumer,   30    N.    H.  ""Hill  v.  DeRochement,  48  N.  H. 

558;    Perry  v.  Carr,  44   N.  H.   118;  87. 

Corey    v.    Bishop,    48    N.    H.    146;  "-^Gallagher    v.    Shipley,    24    Md. 

Wetherbee   v.   Ellison,   19   Vt.   379;  418;  Corey  v.  Bishop,  48  N.  H.  146. 

Wing  v.  Gray,  36  Vt.  261;    Stone  v. 


§    573]  TERMINATION    OF   TENANCY.  65^ 

vent  the  application  of  the  rule  that  the  tenant  bought  some  hay  and 
grain,  and  fed  the  hay  s"o  bought,  so  long  as  the  manure  so  made  is 
commingled  with  that  made  from  the  produce  of  the  farm.^"  j^  j^^^g 
also  been  held  that  the  general  doctrine  would  cover  a  dairy  farm  as 
well  as  one  used  for  general  agricultural  purposes.® ^^  In  Maine  the 
law  is  that  manure  on  a  farm  in  the  possession  of  a  tenant  may  be 
seized  in  execution  by  his  creditor  during  the  continuance  of  his  ten- 
ancy and  sold  for  the  payment  of  his  debts.®^*  The  theory  on  which 
this  doctrine  rests  is  that  during  the  term  a  tenant  could  pass  a  good 
title  to  manure,  and  the  landlord's  only  remedy  would  be  an  action  in 
the  nature  of  waste  for  bad  husbandry. 

In  North  Carolina  a  tenant  who  is  about  to  remove  has  a  right, 
where  there  is  no  covenant  or  custom  to  the  contrary,  to  all  the  manure 
made  by  him  on  the  farm ;  it  is  his  personal  property,  and  he  may  take 
it  with  him.  But  the  manure  ceases  to  be  his  if  he  leaves  it  when  he 
quits  the  farm.  Taking  up  with  the  manure  a  slight  portion  of  the 
earth,  which  is  necessarily  mixed  with  it  in  raking  it  into  heaps,  will 
not  make  the  tenant  a  tort-feasor.®^^ 

A  covenant  by  a  tenant  to  leave  the  manure  on  the  premises  at  the 
expiration  of  his  term  would  override  a  custom  of  the  country  en- 
titling him  to  receive  compensation  for  manure  left  under  such  cir- 
cumstances ;®2®  and  mutual  covenants  for  the  purchase  and  sale  of 
manure  on  the  premises  at  the  expiration  of  a  tenant's  term  entitle 
the  off-going  tenant  to  leave  the  manure  on  the  premises  till  the  sale 
can  be  consummated.®^'^ 

^^'Bonnell  v.  Allen,  53  Ind.  130;         «=!  g^jiti^^iclj  y  Ellison,  2  Ired.  L. 

Lewis  V.  Jones,  17  Pa.  St.  262.  (N.  Car.)  326. 

«^Bonnell  v.  Allen,  53  Ind.  130.  ^^'^  Roberts  v.   Barker,   1   C.   &  M. 

«*  Staples   v.   Emery,   7   Me.    201;  808. 
Brackett  v.    Goddard,   54   Me.    309,        '"  Beaty  v.  Gibbons,  16  East  116. 
313. 


CHAPTER   VIII. 


RIGHTS   AND  LIABILITIES   OF   THE  PARTIES. 


1.  Landlord's      Responsibility      for 

good    Condition    of    Premises, 
§§  574-587. 

2.  Liability     imposed     by     Lessor's 

Agreement  to  Repair,   §§   588- 
598. 

3.  Liability   for   Nuisance,   §§    599- 

611. 


4.  Premises  Occupied  by  more  than 

one  Tenant,  §§  612-624. 

5.  Responsibility  for  Waste,  §§  625- 

639. 

6.  Actions    Relative    to    Possession, 

§§  640-647. 


I.    Landlord's  Eesponsihility  for  Good  Condiiion  of  Premises. 

§  574.  The  well-established  general  rule  is  that  upon  a  demise  of 
premises  there  is  no  implied  warranty  or  implied  condition  as  to 
the  fitness  of  the  leased  property  for  the  purpose  for  which  it  is 
leased.^  In  a  well-considered  case  before  the  Exchequer  Chamber,^ 
the  action  was  to  recover  rent  for  a  pasture,  and  the  defense  made  was 
that  the  land  was  unfit  for  pasture,  and  that  the  defendant's  cattle 
had  been  poisoned  by  a  foreign  substance  on  the  land.  The  court  held 
the  entire  rent  could  be  recovered,  and  that  the  facts  alleged  were  not 
a  defense.  Park,  B.,  said,  in  the  course  of  his  opinion :  "With  respect 
to  the  other  and  principal  question  in  this  case,  viz.,  whether  a  con- 
tract or  condition  is  implied  by  law,  on  the  demise  of  land,  that  it 
shall  be  reasonably  fit  for  the  purpose  for  which  it  is  taken,  if  the 
question  were  res  Integra,  I  should  entertain  no  doubts  at  all  that  no 
such  contract  or  condition  is  implied  in  such  a  case.  The  word  'de- 
mise' certainly  does  not  carry  with  it  any  such  implied  undertaking." 


'Bowe  V.  Hunking,  135  Mass.  380; 
Button  V.  Gerrish,  9  Cush.  (Mass.) 
89;  Hess  v.  Newcomer,  7  Md.  325, 
337;  Clyne  v.  Helmes.  61  N.  J.  L. 
358,  39  Atl.  767;  Gaither  v.  Hascall- 
Richards  &c.  Co.,  121  N.  Car.  384, 
28  S.  B.  546;  Clifton  v.  Montague, 
40  W.  Va.  207,  21  S.  E.  858;  Harlan 
V.  Lehigh  &c.  Co.,  35  Pa.  St.  287; 
Clark    V.    Babcock,    23    Mich.    164; 


Sutton  V.  Temple,  12  M.  &  W.  52; 
Railton  v.  Taylor,  20  R.  I.  279,  38 
Atl.  980;  Thum  v.  Rhodes,  12  Colo. 
App.  245,  55  Pac.  264;  Lynch  v.  Ort- 
lieb,  70  Tex.  727,  8  S.  W.  515;  Perez 
V.  Rabaud,  76  Tex.  191,  13  S.  W.  177; 
McKeon  v.  Cutter,  156  Mass.  296,  31 
N.  E.  389;  Friedman  v.  Schwabacher, 
64  111.  App.  422. 
=  Sutton  V.  Temple,  12  M.  &  W.  52. 


653 


§    575]  RIGHTS    AND   LIABILITIES    OF   THE    PARTIES.  654 

The  same  learned  judge  said  on  another  occasion:  "We  are  all  of 
opinion,  for  these  reasons,  that  there  is  no  contract,  still  less  a  condi- 
tion, implied  by  law,  on  the  demise  of  real  property  only,  that  it  is  fit 
for  the  purpose  for  which  it  is  let.  It  is  much  better  to  leave  the  par- 
ties, in  every  case,  to  protect  their  interests  themselves  by  proper  stip- 
ulations, and  if  they  really  mean  a  lease  to  be  void  by  reason  of  any 
unfitness  in  the  subject  for  the  purpose  intended,  they  should  express 
that  meaning."^  In  the  case  of  Cowen  v.  Sunderland,*'  Devens,  J., 
delivering  the  opinion  of  the  court,  says :  "It  is  a  general  rule,  well 
established  by  the  decisions  of  this  court,  that  the  lessee  takes  an 
estate  in  the  premises  hired,  and  takes  the  risk  of  the  quality  of  the 
premises,  in  the  absence  of  an  express  or  implied  warranty  or  of  de- 
ceit. .  .  .  The  rule  of  caveat  emptor  applies,  and  it  is  for  the  lessee 
to  make  the  examination  necessary  to  determine  whether  the  premises 
he  hires  are  safe  and  adapted  to  the  purposes  for  which  they  are 
hired." 

Thus,  where  the  leased  premises  were  described  as  the  "Bedford 
Salt  Furnace  Property,"  together  with  all  the  appurtenances  thereto 
belonging,  including  six  salt  wells,  tools  and  fixtures  of  the  same,  there 
was  no  implied  covenant  on  the  part  of  the  lessor  that  the  wells  were 
of  any  particular  capacity  or  suitable  for  the  purpose  for  which  they 
were  leased.^  The  law  will  not  imply  a  covenant  in  a  lease  as  to  con- 
ditions not  under  the  control  of  the  lessor,  and  with  reference  to  which 
he  and  the  lessee  being  ignorant,  neither  could  be  supposed  to  have 
contracted.  The  lessee  of  real  property  must  run  the  risk  of  its  con- 
dition, unless  he  has  an  express  agreement.** 

§  575.  Oral  evidence  of  warranty. — Not  only  will  no  implication  of 
a  warranty  of  fitness  be  made,  but  the  rights  of  the  parties  cannot  be 
affected  by  any  collateral  agreements  or  undertakings  which  are  not 
embodied  in  the  written  lease.  It  is  well  settled  that  in  the  absence  of 
fraud,  accident  or  mistake,  oral  evidence  of  a  warranty  will  not  be 
admitted.'^    If  the  lease  contains  no  warranty  as  to  the  conditions  or 

^  Hart  v.  Windsor,  12  M.  &  W.  68,  '  Naumberg  v.  Young,  44  N.  J.  L. 

per  Parke,  B.,  quoted  with  approval  331,  43  Am.  R.  380;  McLean  v.  Nicol, 

in  Foster  v.  Peyser,  9  Gush.  (Mass.)  43  Minn.  169,  45  N.  W.   15;    Snead 

242.  v.  Tietjin  (Ariz.),  24  Pac.  324;  Mast 

*  Cowen  V.  Sunderland,  145  Mass.  v.  Pearce,  58  Iowa  579,  8  N.  W.  632; 

363,  14  N.  E.  117.  Stevens  v.  Pierce,  151  Mass.  207,  23 

^Clifton  v.   Montague,  40  W.  Va.  N.  E.  1006;    De  Witt  v.  Berry,  134 

207,  21  S.  E.  858;  Clark  v.  Babcock,  U.  S.  306,  10  S.  Ct.  536;    Braley  v. 

23  Mich.  164.  Henry,  71  Cal.  481,  12  Pac.  623;  York 

« Franklin  v.  Brown,  118  N.  Y.  110,  v.  Steward,  21  Mont.  515,  55  Pac.  29. 
23  N.  E.  126. 


655  landlord's  responsibility  rOR  condition  of  premises.  [§576 

character  of  a  building,  the  effect  of  the  evidence  to  fix  upon  lessor 
the  liability  arising  from  such  a  warranty  changes  in  a  very  material 
manner  the  rights  and  liabilities  of  the  parties,  and  such  evidence  is 
not  admissible.^ 

§  576.  Demise  of  dwelling  honses.— The  rule  that  there  is  no  im- 
plied warranty  of  fitness  applies  in  a  case  where  the  subject-matter  of 
the  lease  is  a  dwelling  house.  The  lessor  does  not  undertake  that  it  is 
fitted  for  the  use  for  which  it  is  let,  or  for  any  purpose,  or  that  it  will 
remain  in  a  tenantable  condition.^  This  involves  both  the  right  of  the 
landlord  to  collect  rent  and  his  freedom  from  liability  for  injuries 
caused  by  defects  in  the  premises.  If  there  has  been  no  misrepresenta- 
tion or  fraud,  the  landlord  is  entitled  to  his  rent  although  the  prem- 
ises turn  out  to  be  useless.^**  Moreover,  the  landlord  is  not  liable  for 
damage  caused  by  defects  in  the  premises  unless  he  is  guilty  of  laying 
a  trap  or  of  maintaining  a  nuisance.  In  a  case  where  a  tenant  renting 
from  month  to  month  was  injured  by  a  defective  fire-escape,  the  court, 
applying  this  doctrine,  held  the  landlord  was  not  liable.  "The  general 
rule,"  said  the  court,  "is  that  under  such  a  contract  the  lessee  takes 
the  risk  as  to  the  condition  and  quality  of  the  hired  premises,  and  that 
the  landlord  is  not  liable  to  the  tenant  for  injuries  sustained  by  reason 
of  the  defective  condition  of  the  buildings  leased.  By  such  a  lease  the 
lessee  purchases  an  estate  in  the  premises  rented,  and  the  rule  of 
caveat  emptor  apples,  making  it,  ordinarily,  the  duty  of  the  lessee  as 
such  purchaser  to  make  such  examination  of  the  premises  as  is  re- 
quired in  order  to  ascertain  whether  the  premises  have  so  fallen  into 
decay  or  become  so  dangerous  that  a  person  occupying  the  same  is 
liable  to  be  injured.""     Wlien  a  tenant  inspects  premises,  he  takes 

« Lynch  v.  Ortlieb,  70  Tex.  727,  8  1  Daly   (N.  Y.)   99;   Bowe  v.  Hunk- 

S.  W.  515.  ing,  135  Mass.  380;    Button  v.  Ger- 

^  Blake    v.    Ranous,    25    111.    App.  rlsh,  9  Gush.   (Mass.)    89;    Royce  v. 

486;   Gallagher  v.  Button,  73  Conn.  Guggenheim,   106   Mass.   201;    Scott 

172,  46  Atl.   819;    McCoull  v.   Herz-  v.   Simons,  54  N.   H.  426;    Clyne  v. 

berg,    33    111.   App.    542;    Hanson   v.  Helmes,  61  N.  J.  L.  358,  39  Atl.  767; 

Cruse,  155  Ind.  176,  57  N.  E.  904;  Sutton  v.  Temple,  12  M.  &  W.  52; 

Foster  v.   Peyser,   9   Gush.    (Mass.)  Hart  v.  Windsor,  12  M.  &  W.  68. 
242;    Stevens   v.    Pierce,    151    Mass.         ^^  Friedman  v.  Schwabacher,  64  111. 

207,    23    N.    E.    1006;    Naumberg   v.  App.  422. 

Young,  44  N.  J.  L.  331,  43  Am.  R.         "Gallagher   v.    Button,   73    Conn. 

380;    Hart  v.  Windsor.   12  M.  &  W.  172,   46  Atl.   819;    Jaffe  v.   Harteau, 

68;   York  v.  Steward,  21  Mont.  515,  56  N.  Y.  398;  Edwards  v.  New  York 

55  Pac.  29;  Blake  v.  Dick,  15  Mont.  &c.  R.  Co.,  98  N.  Y.  245;   Towne  v. 

236,  38  Pac.  1072;  Mullen  v.  Rainear,  Thompson,  68  N.  H.  317,  44  Atl.  492; 

45  N.  J.  L.  520;  Meeks  V.  Bowerman,  Bowe   v.   Hunking,   135   Mass.   380; 


§    576]  RIGHTS  AND  LIABILITIES   OF  THE  PARTIES.  656 

the  risk  of  their  condition,  and  he  cannot  complain  because  the  land- 
lord did  not  disclose  defects  in  respect  to  which  he  had  full  oppor- 
tunity of  informing  himself.^^  If  the  tenant  desires  to  hold  his  land- 
lord responsible  for  the  security  of  the  leased  building,  he  should  have 
a  covenant  to  that  effect  incorporated  in  the  lease.^^  So,  where  there 
are  no  express  covenants  in  a  lease,  and  the  landlord  is  neither  dis- 
honest nor  negligent,  it  has  been  declared  to  be  settled  law  that  the 
rule  of  caveat  emptor  applies  as  to  the  condition  of  leased  premises. 
The  tenant  assumes  the  risk,  and  no  liability  attaches  to  the  land- 
lord.^^  The  rule  that  the  letting  of  a  house  does  not  imply  that  it  is 
fit  or  will  continue  fit  for  the  purpose  for  which  it  is  let  applies  equally 
to  the  case  of  the  letting  of  several  rooms  in  a  tenement  house,  if  they 
pass  out  of  the  control  of  the  landlord  into  the  exclusive  possession 
of  the  tenant. ^^  But  although  there  is  no  implied  contract  in  a  lease 
of  a  building  that  it  is  well  constructed,  or  safe,  or  reasonably  fit  for 
occupancy,  or  that  it  will  continue  in  habitable  condition,  a  landlord 
is  liable  to  his  tenant  for  damage  resulting  from  defects  in  the  build- 
ing known  to  the  landlord,  or  of  which  he  ought  to  have  known,  and 
not  known  to  the  tenant,  and  of  which  he  had  not  equal  means  of 
knowledge.^® 

In  a  Michigan  case  where  a  dwelling  house  became  untenantable 
from  defects  in  construction  and  sewer  gas,  it  was  held  that  the  tenant 
could  vacate  without  being  liable  for  future  rent.^'^  It  does  not  appear 
that  the  landlord  had  been  guilty  of  any  deceit,  or  that  he  was  under 
any  obligation  to  repair,  so  that  the  decision  must  be  regarded  as  a 
departure  from  the  prevailing  doctrines  on  this  topic.  It  is  worthy  of 
notice  that  the  only  authority  cited  was  the  case  of  letting  one  apart- 
ment in  an  apartment  house.  The  landlord  in  that  case  was  under 
general  obligation  to  repair,  and  retained  general  supervision  over  the 
sewerage,  which  forced  the  tenant  to  vacate.     Even  under  these  cir- 

Booth  V.  Merriam,  155  Mass.  521,  30  Carson  v.   Godley,   26   Pa.   St.   Ill; 

N.  E.  85;  Brewster  v.  De  Fremery,  Krueger  v.   Ferrant,   29   Minn.   385, 

33  Cal.  341;  Krueger  v.  Ferrant,  29  13    N.    W.    158;     Wilcox    v.    Hines 

Minn.  385,  13  N.  W.  158;  Humphrey  (Tenn.),  46  S.  W.  297. 

V.  Wait,  22  U.  C.  C.  P.  580.  "  McKeon    v.    Cutter,    156    Mass. 

^=  Blake  v.  Dick,  15  Mont.  236,  38  296,   31   N.   E.   389;    Looney   v.   Mc- 

Pac.  1072.  Lean,  129  Mass.  33;   Bowe  v.  Hunk- 

« Lynch  v.  Ortlieb,  70  Tex.  727,  8  ing,  135  Mass.  380. 

S.  W.  515.  "  Thum  v.  Rhodes,  12  Colo.  App. 

"Thum  V.  Rhodes,  12  Colo.  App.  245,  55  Pac.  264. 

245,  55  Pac.  264;   Cowen  v.  Sunder-  "Leonard  v.  Armstrong,  73  Mich, 

land,  145  Mass.  363,  14  N.  E.  117;  577,  41  N.  W.  695. 


657  landlord's  responsibility  for  conditiox  of  premises.  [§  577 

cumstances  the  decision  allowing  the  tenant  to  defend  against  an 
action  for  rent  was  not  without  a  vigorous  dissent.^^ 

§  577.  Furnished  house. — It  has  been  suggested  that  a  distinction 
exists  between  the  lease  of  an  unfurnished  and  one  of  a  furnished 
house.  This  distinction  was  discussed  and  disapproved  by  the  Supreme 
Court  of  New  Hampshire.  The  court  said:  "The  sole  contention  of 
the  defendants  is  that  in  a  lease  of  a  furnished  house  there  is  an  im- 
plied covenant  or  condition  that  it  is  reasonably  fit  for  the  lessee's 
habitation.  If  the  house  is  unfurnished  it  is  admitted  that  such  an 
inference  would  not  be  supported  by  sufficient  evidence.  A  broad  dis- 
tinction in  this  regard  is  suggested  between  a  lease  of  a  furnished  and 
a  lease  of  an  unfurnished  house,  which  on  principle  is  not  apparent. 
If  the  landlord  knows  that  the  tenant  proposes  to  occupy  the  house  for 
a  term  of  years  as  a  place  for  the  accommodation  of  the  traveling 
public,  why  should  the  fact  that  the-  landlord  also  leases  to  him  the 
furniture  in  the  house  imply  an  additional  agreement  on  his  part  that 
the  house  is  suitable  for  hotel  purposes  or  for  halDitation?  Want  of 
repair,  and  structural  defects  in  the  house,  do  not  depend  on  the  fur- 
nishings; and  there  is  no  more  reason  why  a  landlord  should  bind 
himself  by  a  warranty  against  such  imperfections  in  a  lease  of  a  fur- 
nished house  than  there  is  in  a  lease  of  an  unfurnished  house."^^ 

In  New  York  the  question  arose  whether  the  lessor  of  a  furnished 
house  was  responsible  for  offensive  odors  which  rendered  the  house  un- 
inhabitable. There  was  no  fraud,  and  the  lessee  had  abundant  oppor- 
tunity to  inspect  the  premises.  The  court  held  there  was  no  warranty, 
and  that  the  tenant  was  bound  to  pay  the  rent.^"  So  in  a  case  where 
the  cellar  of  the  leased  house  became  filled  with  water,  which  ren- 
dered it  damp  and  unhealthy,  the  tenant  abandoned  it  and  refused  to 
be  held  for  rent.  But  in  the  absence  of  false  representations  or  fraud- 
ulent concealment,  this  did  not  justify  his  conduct,  nor  could  he  de- 
fend against  an  action  for  rent.-^ 

§  578.  Exceptions  to  rule. — There  is  a  noted  English  case  which 
holds  that  when  a  furnished  house  was  let  for  temporary  residence  at 

^'Bradley   v.   Goicouria,   67    How.  245;    Cleves   v.   Willoughby,   7    Hill 

Pr.   (N.  Y.)  76.  (N.  Y.)  83,  86. 

"Davis  V.   George,  67  N.   H.   393,  =' Murray    v.    Albertson,    50   N.    J. 

39  Atl.  979.  L.  167,  13  Atl.  394,  disapproving  Wil- 

""  Franklin   v.    Brown,    118    N.    Y.  son  v.  Finch,  Hatton,  L.  R.  2  Exch. 

110,  23  N.  E.  126.    See  also,  Edwards  D.  336. 
V.  New   York  &c.  R.   Co.,   98   N.   Y. 
Jones  L.  &  T.— 42 


§    578]  EIGHTS  AND  LIABILITIES   OF   THE  PARTIES.  658 

a  watering  place,  there  was  an  implied  condition  that  it  was  in  a  fit 
state  to  be  inhabited  and  that  the  tenant  is  entitled  to  quit  upon  dis- 
covering that  it  is  greatly  infested  with  bugs,^*  In  this  ease  Lord 
Abinger  said  he  required  no  authorities  to  hold  that  "a  man  who  rents 
a  ready  furnished  house  does  so  under  the  implied  condition  or  obliga- 
tion— call  it  what  you  will — that  the  house  is  in  a  fit  state  to  be  in- 
habited;" but  in  a  subsequent  case  he  said  that  Smith  v.  Marrahle  was 
a  case  of  a  "contract  of  a  mixed  nature — for  the  letting  of  a  house  and 
furniture  at  Brighton  and  every  one  known  that  the  furniture  upon 
such  occasions  forms  the  greater  part  of  the  value  which  the  party 
renting  it  gives  for  the  house  and  contents.  .  .  .  Where  the  party 
has  had  an  opportunity  of  personally  inspecting  a  ready  furnished 
house,  by  himself  or  his  agent  before  entering  upon  the  occupation  of 
it,  perhaps  the  objection  would  not  arise ;  but  if  a  person  takes  a  ready 
furnished  house  upon  the  faith  of  its  being  suitably  furnished  surely 
the  owner  is  under  an  obligation  to  let  it  in  a  habitable  state."  In 
another  case^*  Smith  v.  Marrahle  was  further  distinguished  on  the 
ground  that  it  was  a  case  of  "a  ready  furnished  house  for  a  temporary 
residence  at  a  watering  place."  In  still  another  it  was  said  that  the 
case  was  "only  an  authority  for  the  propositon  that  in  taking  furnished 
apartments  at  the  seaside,  or  for  temporary  occupation  only,  there  is 
an  implied  warranty  that  they  must  be  fit  for  occupation."-^  The 
principal  case,  as  narrowed  down  by  these  subsequent  explanations,  has 
been  followed  and  probably  represents  the  law  of  England.^*' 

In  the  United  States  the  doctrine  has  been  received  with  disfavor. 
One  American  court  commented  as  follows  on  the  principal  case: 
"Certain  it  is  that  Smith  v,  Marrahle  has  never  been  followed,  except 
under  the  precise  circumstances  on  which  it  was  decided,  and  then 
only  as  enabling  the  tenant  to  abandon  the  premises,  rescind  the  lease 
and  defend  against  the  payment  of  rent.  The  case  has  never  been 
cited  to  raise  an  implied  warranty  under  any  other  circumstances 
without  disapproval."^^  This  implication  of  a  warranty  in  a  demise 
of  ready-furnished  lodgings  has  been  called  an  exception  and  likened  . 
to  a  sale  of  provisions  for  domestic  use  where  the  law  implies  a  war- 

"  Smith  v.  Marrable,  11  M.  &  W.  ^'^  Chester  v.  Powell,  52  L.  T.   (N. 

5.      To    like    effect    see    Ingalls    v.  S.)  722. 

Hobbs,  156  Mass.  348,  31  N.  E.  286.  =<=  Wilson   v.   Finch,   Hatton  L.  R. 

-^  Sutton  v.   Temple,   12   M.   &  W.  2  Exch.  D.  336. 

52.  ^  Naumberg  v.  Young,  44  N.  J.  L. 

^  Hart  V.  Windsor,  12  M.  &  W.  68.  331,  345,  43  Am.  R.  380. '      ' 
See  also,  Robertson  v.  Amazon  &c. 
Co.,  46  L.  T.  (N.  S.)  146. 


659  landlord's  responsibility  for  condition  op  premises.  [§  579! 

ranty  that  the  provisions  are  wholesome.-^  In  deciding  that  there  was 
no  implied  warranty  on  the  demise  of  a  warehouse,  Chief  Justice 
Shaw  of  the  Massachusetts  Supreme  Court  said:  "It  therefore  does 
not  come  within  the  authority  of  cases,  wherein  furnished  rooms  in  a 
lodging  house  are  let  for  parlor,  bedroom  and  the  like,  for  a  particu- 
lar season  of  the  year  in  which  a  warranty  may  be  implied  that  the 
rooms  are  properly  furnished  and  suitably  fitted  for  such  particular 
use.  But  the  authority  of  these  cases  has  been  much  shaken,  if  not 
wholly  overruled,  so  far  as  it  applies  to  real  estate,  by  the  subsequent 
cases."^^  The  rule  that  the  lessee  of  a  furnished  house  is  justified  in 
abandoning  it  for  unfitness  has  since  been  established  in  Massachusetts 
by  an  express  adjudication.^*' 

§  579.     Liability  of  landlord  for  personal  injuries  to  tenant. — In 

the  absence  of  special  circumstances  a  landlord  is  not  liable  for  in- 


^Cleves  V.  Willoughby,  7  Hill  (N. 
Y.)  83. 

=»  Button  V.  Gerrish,  9  Cush. 
(Mass.)  89,  94.  For  further  dis- 
cussion of  the  principles  and  cases 
see  Murray  v.  Albertson,  50  N.  J. 
L.  167,  13  Atl.  394. 

"•  Ingalls  V.  Hobbs,  156  Mass.  348, 
31  N.  E.  286.  In  this  case  Justice 
Knowlton  says:  "There  are  good 
reasons  why  a  different  rule  should 
apply  to  one  who  hires  a  furnished 
room  or  furnished  house  for  a  few 
days  or  a  few  weeks  or  months.  Its 
fitness  for  immediate  use  of  a  par- 
ticular kind,  as  indicated  by  its  ap- 
pointments, is  a  far  more  important 
element  entering  into  the  contract 
than  where  there  is  a  mere  lease 
of  real  estate.  One  who  lets  for  a 
short  term  a  house  provided  with 
all  furnishings  and  appointments 
for  immediate  residence  may  be  sup- 
posed to  contract  in  reference  to  a 
well  understood  purpose  of  the 
hirer  to  use  it  as  a  habitation.  An 
important  part  of  what  the  hirer 
pays  for  is  the  opportunity  to  en- 
Joy  it  without  delay  and  without 
the  expense  of  preparing  it  for  use. 
It  is  very  diflBcult  and  often  impos- 


sible for  one  to  determine  on  in- 
spection whether  the  house  and  its 
appointments  are  fit  for  the  use  for 
which  they  are  immediately  wanted, 
and  the  doctrine  caveat  emptor, 
which  is  ordinarily  applicable  to  a 
lessee  of  real  estate,  would  often 
work  injustice  if  applied  to  cases  of 
this  kind.  It  would  be  unreasonable 
to  hold,  under  such  circumstances, 
that  the  landlord  does  not  impliedly 
agree  that  what  he  is  letting  is  a 
house  suitable  for  occupation  in  its 
condition  at  the  time.  This  distinc- 
tion between  furnished  and  unfur- 
nished houses,  in  reference  to  the 
construction  of  contracts  for  letting 
them,  when  there  are  no  express 
agreements  about  their  condition, 
has  long  been  recognized  in  Eng- 
land, where  it  is  held  that  there 
is  an  implied  contract  that  a  fur- 
nished house,  let  for  a  short  time, 
is  in  proper  condition  for  immediate 
occupation  as  a  dwelling.  Smith  v. 
Marrable,  11  M.  &  W.  5;  Manchester 
&c.  Co.  V.  Carr,  L.  R.  5  C.  P.  D. 
507;  Sutton  v.  Temple,  12  M.  &  W. 
52;  Hart  v.  Windsor,  12  M.  &  W. 
68;  Bird  v.  Greville,  1  C.  &  E.  317; 
Charsley  v.  Jones,  53  J.  P.  280." 


§   5-79]  RIGHTS  AND  LIABILITIES   OF   THE   PARTIES.  660 

juries  caused  to  the  tenant  from  defects  in  the  leased  premises." 
Thus,  where  a  tenant  was  injured  by  stepping  on  a  defective  cover  to 
a  cesspool,  the  landlord  was  not  liable.  The  accident  happened  solely 
because  the  frame  was  old  and  out  of  repair  and  there  was  nothing  to 
show  that  its  condition  was  not  easily  discoverable  on  examination. 
It  was  as  much  the  duty  of  the  plaintiff  when  he  hired  the  house  and 
yard  to  examine  the  premises  and  ascertain  whether  they  were  in  such 
repair  that  she  could  safely  use  them  as  of  the  defendant.^^  Tj^-g 
principle  covers  all  cases  where  the  defect  is  obvious  alike  to  tenant 
and  landlord  and  where  something  not  dangerous  in  itself  becomes  so 
by  reason  of  its  use  upon  a  particular  occasion.  Examples  of  this 
would  be  where  a  child  fell  down  a  low  embankment  which  was  not 
protected  by  a  fence,^^  or  where  a  stranger  fell  down  an  irregular, 
unprotected  flight  of  steps  on  a  dark  night.^*  So  a  landlord  was  not 
liable  to  his  tenant  for  the  collapse  of  a  public  hall.^^ 

The  liability  of  the  landlord  must  arise  in  every  instance  from  the 
breach  of  some  duty  he  owes  his  tenant  and  it  may  be  laid  down  as  a 
general  rule,  supported  by  the  weight  of  authority,  that  there  is  no 
implied  duty  on  the  owner  of  a  house,  which  is  in  an  unsafe  condition, 
to  inform  a  proposed  tenant  that  it  is  in  such  a  condition ;  and  that 
no  action  will  lie  against  him  for  an  omission  to  do  so  in  the  absence 
of  express  warranty  or  deceit.^^  Many  courts  in  late  decisions  adhere 
to  this  long-established  rule  of  caveat  emptor.  In  one  case  a  boiler, 
defective  in  construction,  exploded."  In  another  a  gallery,  defective 
in  construction,  fell.^^  In  another  a  house  was  too  weak  structurally 
to  resist  snow  slides  known  to  the  lessor  to  be  recurrent  and  danger- 
ous.^'' In  another  a  floor  defective  in  construction  fell.*"  In  another 
a  stair  tread  had  been  sawed.    The  lessor  knew  of  the  sawing  but  sup- 

"Bowe  v.  Hunking,  135  Mass.  380;  45  N.  J.  L.  520;   Smith  v.  State,  92 

Keates  v.  Cadogan,  10  C.  B.  591,  70  Md.    518,    48    Atl.    92;     Towne    v. 

E.  C.  L.  591;   Robbins  v.  Jones,  15  Thompson,    68    N.    H.    317,    44    Atl. 

C.  B.   (N.  S.)  221,  240,  109  E.  C.  L.  492;  Whitmore  v.  Orono  Pulp  &  Pa- 

221.  per  Co.,   91   Me.   297,  39   Atl.   1032; 

'2  Booth  V.  Merriam,  155  Mass.  521,  Piatt  v.   Farney,   16   111.   App.   216; 

30  N.  E.  85.  Sutton  v.  Temple,  12  M.  &  W.  52. 

35  Peterson  v.  Smart,  70  Mo.  34.  "  Jaffe  v.  Harteau,  56  N.  Y.  398. 

^Eyre  v.  Jordan,  111  Mo.  424,  19  =»  Edwards    v.    New    York    &c.    R. 

S.  W.  1095.  Co.,  98  N.  Y.  245,  249. 

=>=  Edwards  v.  New  York  &c.  R.  Co.,  '"  Doyle  v.  Union  Pac.  R.  Co.,  147 

98  N.  Y.  245.  U.  S.  413,  13  Sup.  Ct.  333. 

^''Land  v.  Fitzgerald,  68  N.  J.  L.  *"  Tuttle  v.   Gilbert  Mfg.   Co..   145 

28,  52  Atl.   229,  Mullen  v.  Rainear,  Mass.  169,  13  N.  E.  465. 


A 


661  landlord's  responsibility  for  condition  of  premises.  [§  579 

posed  the  tread  sufficient.*^  In  another  a  well  had  been  used  as  a  cess- 
pool and  thus  had  become  offensive.*^  In  another  fixtures  put  up  by 
the  lessor  were  structurally  defective  and  fell.*^  In  another  a  stair- 
way was  defective.**  In  another  a  defective  platform  fell.*^  In  an- 
other an  unsafe  awning  fell  on  a  guest.*®  In  another  a  defective  gal- 
lery fell  on  a  guest.*^  In  another  defective  machinery  in  a  mill  gave 
way.**  In  all  these  cases,  it  appearing  that  the  lessor  was  unaware  of 
the  defects,  it  was  held  that  he  was  not  liable  to  the  lessee  or  his  serv- 
ants for  the  injury  occasioned  by  them. 

"The  reason  of  the  rule  is  perfectly  apparent.  If  the  lessee  knows 
the  condition  of  the  premises  and  rents  them  without  requiring  the 
owner  to  repair,  he  takes  them  as  he  finds  them  and  has  no  right  to  com- 
plain of  injuries  sustained  on  account  of  their  condition.  The  owner 
not  being  compelled  to  keep  it  in  repair,  if  the  tenant  desires  to  re- 
quire that  of  him,  he  should  so  bind  him  by  contract.  In  the  absence 
of  that  he  must  protect  himself  against  dangers  which  are  apparent  to 
him.  A  building  may  be  perfectly  safe  and  suitable  if  used  for  cer- 
tain purposes,  while  it  may  not  be  for  others,  and  if  the  tenant  has 
had  opportunity  to  inspect  it  before  he  rents  it,  the  landlord  cannot 
anticipate  that  he  will  use  it  in  a  way  his  intelligence  and  observation 
ought  to  tell  him  not  "to  use  it."*^  It  was  said  in  one  case :  "Fraud 
apart,  there  is  no  law  against  letting  a  tumble-down  house  and  the  ten- 
ant's remedy  is  upon  the  contract,  if  any."^^ 

The  principle  of  caveat  emptor  applies  to  the  occupation  of  rented 
premises  by  a  tenant  as  to  any  defects  which  are  inherent  and  unknown 
to  the  landlord,  and  the  landlord  is  not  liable  to  the  tenant  for  in- 
juries received  where  he  had  done  all  that  a  reasonable  prudent  man 
would  have  done  toward  fitting  the  place  for  occupation. ^^  The  same 
rule  applies  with  equal  force  where  the  defects  in  the  leased  premises 
were  not  secret  but  obvious  and  apparent  to  the  most  casual  observer. 
The  tenant  takes  the  risk  of  their  safe  occupancy  and  cannot  hold  the 
landlord  responsible  for  injuries  caused  thereby.^- 

"  Bowe  v.  Hunking,  135  Mass.  380.  "  McConnell    v.    Lemley,    49    La. 

*^Kern  v.  Myll,  94   Mich.   477,  54  Ann.  1433,  34  L.  R.  A.  609. 

N.  W.  176.  ^  Johnson    v.    Tacoma   &c.    Co.,    3 

^^Burdick  v.  Cheadle,  26  Ohio  St.  Wash.  722,  29  Pac.  451. 

393,  20  Am.  R.  767.  "  Smith  v.  Walsh.  92  Md.  518,  530, 

"Willson  V.  Treadwell,  81  Cal.  58,  48  Atl.  92,  per  Boyd,  J. 

22  Pac.  304..  »» Bobbins  v.  Jones,  15  C.  B.    (N. 

«  Texas  &c.  R.  Co.  v.  Mangum,  68  S.)  221,  240,  109  E.  C.  L.  221. 

Tex.  342,  4  S.  W.  617.  "  Daley  v.  Quick,  99  Cal.   179,  33 

'"  Fellows  v.  Gilhuber,  82  Wis.  639,  Pac.  859. 

52  N.  W.  307.  "  Harpel  v.  Fall,  63  Minn.  520,  65 


§■  580]  RIGHTS   AND  LIABILITIES   OF   THE   PARTIES.  662 

§  580.  Fraud  a  basis  of  landlord's  liability. — Even  in  the  absence 
of  special  provisions  in  a  lease  in  regard  to  warranty  or  repairs,  one 
ground  on  which  a  landlord  may  be  liable  to  his  tenant  for  personal 
injuries  caused  by  a  defect  in  the  premises  is  that  he  has  been  guilty 
of  misrepresentation  and  fraud.^^  The  lessor  is  not,  however,  liable 
for  injuries  resulting  to  a  lessee  from  the  act  of  his  agent  in  with- 
holding information  as  to  the  defective  condition  of  the  premises  un- 
less there  is  such  a  concealment  of  defects  not  open  to  ordinary  ob- 
servation as  to  amount  to  fraud  or  deceit.  Furthermore  the  repre- 
sentations of  the  agent  as  to  the  conditions  of  leased  premises,  of 
which  he  had  the  exclusive  care,  are  not  binding  upon  his  principal 
unless  they  were  made  at  the  time  of  the  contract  of  letting  and  con- 
stituted a  part  of  the  res  gestae.^*  In  another  case  an  agent,  to  make 
repairs  on  rented  premises,  assured  the  tenant  that  they  were  safe  for 
occupation,  and  the  tenant  subsequently  suffered  personal  injuries 
from  a  defect  in  the  premises.  Yet  the  landlord  was  not  liable.  The 
evidence  merely  showed  that  a  person  authorized  only  to  make  repairs, 
and  not  authorized  to  make  representations,  stated  the  shed  was  safe 
and  there  was  no  proof  that  he  did  not  believe  what  he  said  or  that  he 
had  not  some  reasonable  ground  for  believing  the  representations  to  be 
true  and  no  evidence  was  given  to  show  that  any  fact  was  suppressed 
that  the  landlord  was  bound  to  disclose  to  the  tenant.^^  On  another 
occasion  the  defect  causing  the  accident  was  so  latent  that  it  was  not 
discovered  for  five  months.  As  it  appeared  from  that  that  the  assertion 
made  by  the  lessors  as  to  the  safety  of  the  premises  was  not  fraudu- 
lently made,  but  was  warranted  by  the  appearance  of  the  premises,  and 
was  believed  to  be  true  when  made,  they  could  not  be  charged  with 
fraud  in  making  it.^"  Yet  it  has  been  declared,  in  a  case  of  this  kind, 
that  the  affirmation  of  something  as  true,  regarding  the  truth  or 
falsity  of  which  the  speaker  is  ignorant,  is  as  much  under  the  inter- 
diction of  the  law  as  a  false  averment  knowingly  made."  Still,  as  a 
general  rule,  a  lessor  is  not  bound  to  disclose  any  defects  in  the  struc- 
ture or  defects  in  the  condition  of  premises  that  makes  them  unfit  for 

N.  W.  913;    McCarthy  v.  Fagin,  42  "Gate  v.  Blodgett,  70  N.  H.  316,  48 

Mo.  App.  619.  Atl.   281. 

=^Cate  V.  Blodgett,  70  N.  H.  316,  =^  Daley  v.  Quick,  99  Cal.  179,  33 

48    Atl.    281;    Perez   v.    Rabaud,    76  Pac.  859. 

Tex.  191,  13  S.  W.  177;   Gaither  v.  ''« Toner  v.  Meussdorffer,  123  Cal. 

Hascall-Richards  &c.  Co.,  121  N.  Car.  462,  56  Pac.  39. 

384,   28   S.  E.   546;    Cole  v.  McKey,  "  Piirsel  v.   Teller,  10  Colo.   App. 

66  Wis.  500,  29  N.  W.  279.  488,  51  Pac.  436.    Citing  Story's  Eq., 

§  193. 


II 


663   LAifDLORD'S  EESPONSIBILITY  FOR  CONDITION  OF  PREMISES.    [§    581 

habitation,  and  on  that  account  a  statement  by  a  landlord  that  the 
plumbing  is  in  good  ordel"  is  to  be  regarded  merely  as  an  expression 
of  opinion  and  not  as  an  assertion  of  a  f act.^^  There  is  a  material 
distinction,  however,  tjeween  passive  concealment  and  active  miscon- 
duct, such  as  a  false  representation  which  would  necessarily,  if  relied 
on,'  have  some  effect  in  inducing  the  other  party  to  enter  into  the  con- 
tract.^^  A  misrepresentation  in  regard  to  the  condition  of  the  house 
upon  which  the  lessee  is  intended  to  rely,  is  held  to  justify  him,  on 
the  discovery  of  the  fraud,  in  abandoning  the  premises  and  relieve  him 
from  all  further  olDligations  under  the  lease.^"  Where  the  fraud, 
which  induced  the  acceptance  of  a  lease,  went  to  the  amount  of  con- 
sideration to  be  paid  for  it,  it  was  held  that  the  lessee  could  retain  the 
estate  and  sue  to  recover  the  damages  caused  by  the  fraud."^  A  lessee 
is  not  precluded  from  avoiding  a  lease  on  account  of  fraud,  because  of 
his  covenant  that  he  received  the  premises  in  good  order  and  con- 
dition.^ ^  But  where  a  lessee,  after  renting  a  house  on  the  representa- 
tion that  it  was  free  from  sewer  gas,  remained  in  the  house  and  paid 
rent  with  knowledge  of  the  presence  of  such  gas,  this  was  held  to  be 
an  election  to  treat  the  lease  as  valid  in  spite  of  the  misrepresenta- 
tion.^^ 

§  581.  When  there  are  concealed  defects,  attended  with  danger 
to  an  occupant  and  which  a  careful  examination  would  not  discover, 
known  to  the  lessor,  the  latter  is  bound  to  reveal  them  in  order  that 
the  lessee  may  guard  against  them.'''*  Traps  or  contrivances  may  exist 
by  means  of  which  the  most  careful  occupant  might  be  injured.  "Such 
traps  or  contrivances,"  says  Mr.  Justice  Field,  "are  not  merely  a  want 
of  repair.  They  are,  in  a  sense,  active  agencies  of  mischief,  which  no 
tenant  would  expect  to  find  in  even  a  decayed  and  ruinous  tenement."*'^ 
The  landlord's  liability  may  be  independent  of  either  fraud  or  mis- 

^  Wilkinson  v.  Clauson,  29  Minn.  "^  Guffey  v.  Clever,  146  Pa.  St.  548, 

91,  12  N.  W.  147;   Coulson  v.  Whit-  23  Atl.  161. 

ing,  12  Daly  (N.  Y.)  408.  «=  Pursel  v.   Teller,   10  Colo.  App. 

''  Doggett    V.    Emerson,    3    Story  488,  51  Pac.  436. 

(U.  S.)  700,  733;  Smitli  v.  Country-  "^Morey  v.  Pierce,  14  111.  App.  91. 

man,  30  N.  Y.  655,  680.  "^  Cowen  v.  Sunderland,  145  Mass. 

^'Pursel  V.  Teller,  10  Colo.  App.  363,    14    N.    E.    117;     Sunasack    v. 

488,  51  Pac.  436;    Jackson  v.  Odell,  Morey,  196   111.  569,  63  N.  E.   1039, 

12    Daly    (N.    Y.)     345;     Keates    v.  reversing   98   111.   App.   505;    Shack- 

Cadogan,  10  C.  B.  591,  70  E.  C.  L.  ford  v.  Coffin,  95  Me.  69,  49  Atl.  57; 

591;  Cornfoot  v.  Fowke,  6  M.  &  W.  O'Malley  v.   Twenty -five  Associates, 

358,  373.  178  Mass.  555,  60  N.  E.  387. 

«=  Bowe  v.  Hunking,  135  Mass.  380. 


§    582]  RIGHTS   AXD   LIABILITIES    OF    THE   PARTIES.  664 

representation ;  mere  negligence  in  failing  to  communicate  his  knowl- 
edge is  sufficient  to  fix  his  liability.  This  doctrine  was  applied  in  a 
case  where  an  old  cesspool  had  been  covered  over  with  boards  and  from 
four  to  six  inches  of  earth  on  which  grass  and  weeds  were  growing. 
The  landlord  was  liable  for  injury  suffered  by  the  tenant  from  falling 
into  the  cesspool.''®  And  again  the  landlord  was  liable  where  he  knew 
of  a  defect  in  a  clamp  used  for  hoisting  in  a  factory,  and  the  clamp 
broke  causing  injury  to  an  employe  of  the  lessee.  The  defect  was  not 
known  to  the  lessee  or  discoverable  by  a  reasonable  examination  of  the 
premises.®^ 

A  landlord  is  not  an  insurer,  but  if  he  knows  that  the  premises  he  is 
about  to  let  are  defective,  especially  if  the  dangerous  place  is  not  ob- 
vious and  he  does  not  inform  the  tenant  of  the  defect,  he  is  liable  for 
any  injury  caused  thereby  to  the  tenant  or  a  member  of  his  family. 
The  law  requires  good  faith  of  the  landlord.^® 

In  Minnesota  an  employer's  liability  act  makes  an  employer  liable 
to  his  servant  for  injuries  caused  by  dangerous  and  defective  machin- 
ery. It  followed  that  where  a  dangerous  machine  existed  at  the  time  a 
warehouse  was  leased,  the  landlord  was  liable  for  an  injury  resulting 
to  an  employe  of  a  tenant.®^ 

§  582.  landlord's  duty  to  learn  of  defects. — The  view  supported 
by  the  better  reason  as  well  by  courts  carrying  the  greater  weight 
limits  the  obligation  of  the  landlord  to  disclosing  defects  already 
known  to  him  without  examining  the  property  to  discover  defects.  He 
has  done  his  whole  duty  in  telling  of  all  the  secret  defects  of  which  he 
has  knowledge.""  Chief  Justice  Holmes,  speaking  for  the  Massa- 
chusetts court,  said:  "No  doubt  a  duty  to  take  reasonable  care  to 
secure  reasonable  safety  might  be  imposed  upon  landlords  on  grounds 
of  policy,  irrespective  of  the  date  of  the  lease.  But  we  see  no  suffi- 
cient reason  for  departing  from  the  general  rule  when  we  consider  the 
relation  of  landlord  and  tenant  from  the  point  of  view  of  contract,  and 
if  there  is  no  undertaking  to  give  the  tenant  more  than  he  hires,  we 
can  see  no  ground  for  holding  a  landlord  liable  in  tort  for  not  mak- 

^'  Cowen  v.  Sunderland,  145  Mass.  «'  Tvedt  v.  Wheeler,  70  Minn.  161, 

363,  14  N.  E.  117.  72  N.  W.  1062. 

®^  Anderson    v.    Hayes,    101    Wis.  ''"  O'Malley  v.   Twenty-five  Associ- 

538,  77  N.  W.  891.  ates,  178   Mass.   555,  60   N.  E.  387; 

^  Moore  v.  Parker,  63  Kan.  52,  64  Shackford  v.   CoflSn,   95   Me.   69,  49 

Pac.  975;  McCarthy  V.  Fagin,  42  Mo.  Atl.    57;    Coke   v.    Gutkese,    80   Ky. 

App.  619.  598. 


! 


665  landlord's  responsibility  for  condition  CF  PRE:iIISES.    [§   583 

ing  the  same  improvement  or  for  not  mentioning  what  he  did  not 
know.'^" 

A  rule  placing  greater  responsibility  on  the  landlord  has  been 
adopted  by  some  courts  however.  This  is  stated  to  be  that  "in  the  ab- 
sence of  a  contract  to  repair  or  warranty  of  condition,  both  the  land- 
lord and  tenant  must  use  reasonable  care  and  diligence.  If  the  ten- 
ant neglect  such  reasonable  care  and  diligence  to  ascertain  the  condi- 
tion of  the  premises,  or  knowing  their  condition  assumed  the  risk, 
then  he  cannot  recover  against  the  landlord.  On  the  other  hand,  if 
the  landlord  neglect  to  use  reasonable  care  and  diligence  in  ascertain- 
ing whether  his  premises  are  safe  or  if  he  actually  knows  they  are  un- 
safe and  conceals  or  misrepresents  their  condition,  then  he  is  liable, 
the  tenant  being  in  no  fault.  It  is  not  on  the  ground  of  an  insurer 
or  warrantor  of  condition  under  his  lease  contract,  but  on  the  ground 
of  the  obligation  implied  by  law  not  to  expose  the  tenant  or  the  pub- 
lic to  danger  which  he  knows,  or  in  good  faith  should  know,  and 
which  the  tenant  does  not  know  and  cannot  ascertain  by  the  exercise 
of  reasonable  care  and  diligence."^^ 

§  583.  Unsanitary  condition  of  leased  house. — The  same  general 
rules  in  regard  to  a  landlord's  responsibility  for  injuries  apply  in 
cases  of  sewer  gas  and  defective  plumbing.  Improper  drainage  in  a 
leased  house  caused  the  tenant  to  have  diphtheria  but  the  landlord  was 
held  not  liable  in  the  absence  of  misrepresentation  and  deceit.  This 
result  was  reached  on  the  ground  that  defective  plumbing  would  not 
be  regarded  as  a  hidden  defect,  although  it  might  be  known  to  the 
landlord  and  not  to  the  tenant.  The  court  stated  the  rule  to  be  that : 
"A  lessor  is  not  liable  to  a  tenant  of  the  lessee  for  injuries  resulting 
from  the  unsanitary  condition  of  the  premises,  in  the  absence  of 
fraudulent  concealment  of  the  defects  complained  of,  a  warranty  of 
fitness,  or  an  agreement  to  repair."''^  In  speaking  of  the  general  rule 
of  non-liability  Judge  Holmes  said :  "And  this  rule  cannot  be  eluded 
by  showing  that  the  tenant  did  not  know  of  a  defect  and  that  the  land- 
lord did,  and  then  asking  a  jury  to  pronounce  it  a  secret  source  of 
danger.  Everybody  knows  that  houses  in  a  city  have  drains,  and  that 
drains  are  liable  to  get  out  of  order  or  prove  unsatisfactory.     The 

"O'Malley  v.  Twenty-five  Associ-  "Towne  v.  Thompson,  68  N.  H. 
ates,  178  Mass.  555,  559,  60  N.  E.  317,  44  Atl.  492.  But  see  Tyler  v. 
387.  Disbrow,  40  Mich.  415. 

"Hines  v.  Wilcox,  96  Tenn.  328, 
334,  34  S.  W.  420. 


§    58-i]  EIGHTS    AND   LIABILITIES    OF    THE   PARTIES.  666 

I 

possibility  is  manifest  and  there  is  strong  ground  for  requiring  the 
tenant  to  insist  on  a  warranty,  if  he  does  not  wish  to  take  the  risk."^* 
But  a  tenant  has  a  right  to  rely  on  the  landlord's  asstrrance  that 
premises  are  free  from  sewer  gas  and  in  a  healthy  condition,  and  if 
the  landlord  misrepresents  he  is  liable  in  damages.'^^  So  where  a 
lessor  is  guilty  of  fraud  in  representing  that  plumbing  in  a  dwelling 
house  is  in  good  sanitary  condition,  this  furnishes  a  defense  for  lessee 
when  sued  for  rent.'^  All  undertakings  in  regard  to  the  condition  of 
a  house  do  not,  however,  cover  the  plumbing.  The  words  of  a  lease 
on  which  this  question  arose  were  these :  "It  is  understood  and  agreed 
that  the  owner  shall  not  be  called  upon  or  liable  for  any  repairs  what- 
soever on  said  premises  during  the  term ;  the  house  being  now  in  per- 
fect order,"  This  clause  referred  only  to  repairs.  "The  agreement 
that  the  house  was  *in  perfect  order'  had  respect  to  its  condition  as  an 
edifice  in  perfect  repair,  and  not  to  the  present  or  future  state  of  the 
air  within  it.""^ 

§  584.  Duty  on  landlord  to  warn  against  infection. — Defects  in 
the  plumbing  of  a  building  cannot  be  discovered,  perhaps,  by  any  ex- 
amination that  the  intending  tenant  can  be  expected  to  make,  but  yet 
it  has  never  been  held  that  the  landlord  is  bound  under  penalty  of 
fraud,  to  disclose  such  defects,  even  though  he  is  aware  of  them.  The 
tenant  is  as  much  bound  to  make  ordinary  repairs  to  the  plumbing  as 
he  is  to  make  any  other  ordinary  repairs  in  a  house  that  he  impru- 
dently leases  while  it  is  out  of  order.'^*  But  there  is  a  duty  on  a  lessor 
who  knows  that  there  is  a  special  danger  from  infection  to  disclose  it 
to  a  lessee.  Thus,  the  combined  facts  that  there  had  been  diphtheria 
in  a  house,  and  that  the  drains  were  defective,  were  enough  to  warrant 
the  Jury  in  finding  that  the  lessor  knew,  or  ought  to  have  known,  as  a 
prudent  man,  that  this  comlnnation  of  circumstances  introduced  a 
special  danger  of  infection  from  the  drains.  "But  it  is  not  enough 
that  the  landlord  knows  of  the  source  of  danger,  unless  also  he  knows 
or  common  experience  shows  that  it  is  dangerous.  He  is  bound  at  his 
peril  to  know  the  teachings  of  common  experience,  but  he  is  not 
bound  to  foresee  results  of  which  common  experience  would  not  warn 

'"  Cutter  v.  Hamlen,  147  Mass.  471,  Wallace   v.    Lent,    1    Daly    (N.   Y.) 

475,  18  N.  E.  397.  481. 

"Sunasack  v.  Morey,  196  111.  569,  "Foster     v.      Peyser,      9      Cush. 

63  N.  E.  1039,  reversing  98  111.  App.  (Mass.)  242. 

505.  "  Blake    v.    Ranous,    25    111.    App. 

"Wolfe  V.  Arrott,  109  Pa.  St.  473;  486;    Coulson   v.   Whiting,   12   Daly 

(N.  Y.)    408. 


6G7  landlord's  responsibility  for  condition  of  premises.  [§  585 

him  and  which  only  a  specialist  would  apprehend/'^^  A  landlord 
could  be  charged  with  special  knowledge  of  danger  of  infection  when, 
knowing  of  the  existence  of  a  disused  privy  vault  filled  with  fecal 
matter  and  stagnant  water,  he  took  measures  to  remove  the  nuisance 
which  were  inadequate  and  insufficient.  "If  the  condition  of  the  vault 
was  a  dangerous  one  and  the  defendant's  attention  was  called  to  it 
and  he  undertook  to  remedy  it,  and  used  means  which  were  ineffectual 
for  that  purpose,  and  which  he  knew,  or  ought  to  have  known,  were 
ineffectual,  he  cannot  escape  liability  by  employing  a  servant  to  do  the 
work  or  escape  the  consequences  of  that  servant's  neglect  to  do  the 
work  properly."  The  landlord  was  responsible  in  damages  for  disease 
caused  by  the  offensive  odors  arising  from  the  vault.^"  A  landlord 
who  lets  premises,  knowing  they  are  infected  by  a  contagious  disease, 
without  notifying  the  tenant  thereof,  is  liable  to  the  latter,  in  case  the 
disease  is  communicated,  for  the  damages  sustained.^^  And  where  a 
landlord  improperly  filled  up  an  open  well  and  then  built  over  it  so 
that  it  became  a  cesspool  and  a  nuisance  to  the  tenant  who  subse- 
quently rented  the  premises,  causing  the  death  of  a  member  of  the 
tenant's  family,  it  was  held  that  the  landlord  was  liable  to  the  tenant 
for  such  improper  use  of  his  premises  on  the  doctrine  that  one  must  so 
use  his  own  premises  as  not  to  cause  injury  to  others.*^ 

In  the  course  of  a  tenancy  at  will,  the  landlord  discovered  a  defect 
in  a  drain  on  the  premises  but  failed  to  repair  it  or  to  inform  the  ten- 
ant of  it.  The  defect  was  an  ordinary  defect  in  the  drain  in  use  on 
the  premises,  and  the  danger  was  the  ordinary  danger  from  that  source. 
The  tenant  contracted  typhoid  fever  from  this  defect  but  the  land- 
lord was  held  not  to  be  responsible  in  damages.  He  was  under  no  ob- 
ligation to  repair  the  defect  nor  was  he  under  obligation  to  disclose  it.®^ 

§  585.  Liability  to  guests  of  the  tenant. — The  general  doctrine  as 
to  the  restricted  responsibility  of  a  landlord  for  personal  injuries 
caused  to  the  tenant  by  defects  in  the  premises  applies  to  visitors  of 
the  tenant  on  the  leased  premises.  The  law  leaves  it  to  the  tenant  to 
say  who  shall  be  his  guest  in  his  private  dwelling.  And  if  a  guest 
does  so  enter  and  while  there  is  injured,  without  his  fault,  by  some 
defect  therein,  he  must  seek  his  damages  from  him  whose  invitation 
impliedly  assured  him  he  could  enter  safely,  and  who  alone  is  responsi- 

"  Cutter  v.  Hamlen,  147  Mass.  471,  "  Kern  v.  Myll,  80  Mich.  525,  45 

18  N.  E.  397,  per  Holmes,  J.  N.  W.  587. 

'"Martin   v.   Richards,    155    Mass.  «' Bertie  v.  Flagg,  161  Mass.  504, 

381,  29  N.  E.  591.  37  N.  E.  572. 

«^  Cesar  v.  Karutz,  60  N.  Y.  229. 


§'   586]  EIGHTS   AND   LIABILITIES   OF   THE   PARTIES.  668 

ble  for  the  defect  which  caused  the  injury.  In  such  a  case  the  guest 
can  have  no  greater  claim  against  the  lessor  than  the  lessee  himself 
and  the  members  of  his  family  have.^*  In  one  case  a  business  visitor 
of  the  tenant  was  injured  by  falling  down  an  embankment  adjoining 
a  walk  leading  from  the  street  to  the  door  of  the  building  owned  by 
the  landlord.  The  accident  happened  in  the  night  time.  There  was 
no  defect  in  the  walk  itself.  It  was  rendered  dangerous,  if  at  all,  by 
the  want  of  a  railing  or  by  the  absence  of  a  light  or  some  other  warn- 
ing. The  visitor  sued  the  landlord  but  was  not  allowed  to  recover, 
because  the  landlord  had  been  guilty  of  no  negligence  toward  him.*^ 
This  same  restriction  upon  the  liability  of  the  landlord  applies  to  sub- 
tenants, servants,  employes,  and  to  members  of  the  tenant's  family. 
The  reason  is  that  entering  under  the  tenant's  title,  and  not  by  any 
invitation,  express  or  implied,  from  the  owner,  they  assume  the  risk 
as  the  tenant  does.^®  Persons  who  occupy  by  the  tenant's  permission 
cannot  be  considered  as  occupying  by  the  invitation  of  the  landlord 
so  as  to  make  him  liable  to  them  in  a  greater  extent  than  he  is  liable 
to  the  tenant. ^^  A  sub-tenant  who  occupies  in  the  face  of  a  prohibi- 
tion in  the  lease  against  sub-letting  is  in  no  position  to  call  the  original 
landlord  to  account  for  defects  in  the  premises.  Under  such  circum- 
stances the  landlord  can  be  made  responsible  neither  under  his  contract 
to  repair,  nor  by  reason  of  a  duty  in  regard  to  common  passage  ways.** 

§  586.  Injuries  to  property  of  the  tenant. — Under  a  lease  ex- 
pressly exempting  a  landlord  from  any  obligation  to  make  repairs  or 
improvements  upon  the  premises  he  is  not  liable  to  the  tenant  for  dam- 
ages to  his  goods  occasioned  by  the  leased  premises  becoming  and  re- 
maining out  of  repair.  If  the  building  was  so  out  of  repair  as  to 
render  it  unfit  for  occupancy,  the  tenant  had  a  right  to  make  the  re- 
pairs himself  or  vacate  the  building.*^    In  the  absence  of  contractual 

"McKenzie  v.   Cheetham,  83   Me.  1032;    Towne   v.    Thompson,    68    N. 

543,  22  Atl.  469.  H.    317,    44    Atl.    492;     Robbins    v. 

'=Mellen  v.  Morrill,  126  Mass.  545.  Jones,  15  C.  B.  (N.  S.)  221,  240,  109 

To  same  effect  see  Eyre  v.  Jordan,  E.  C.  L.  221. 

Ill  Mo.  424,  19  S.  W.  1095.  "  Bowe    v.    Hunking,    135    Mass. 

^^  Smith  V.  State,  92  Md.  518,  48  380;  Robbins  v.  Jones,  15  C.  B.   (N. 

Atl.  92;    Jaffe  v.  Harteau,  56  N.  Y.  S.)    221,  109  E.  C.  L.  221;    Jaffe  v. 

398;  Cole  v.  McKey,  66  Wis.  500,  29  Harteau,  56  N.  Y.  398. 

N.  W.  279;   Ryan  v.  Wilson,  87  N.  *' Donaldson   v.   Wilson,   60   Mich. 

Y.  471;    Clyne  v.   Helmes,   61  N.  J.  86,  26  N.  W.  842;  Cole  v.  McKey,  66 

L.  358,  39  Atl.  767;   Bowe  v.  Hunk-  Wis.  500,  29  N.  W.  279. 

ing,    135    Mass.    380;    Whitmore    v.  '"  Beneteau    v.    Stubler,    79    Minn. 

Orono  &c.  Co.,  91  Me.   297,   39  Atl.  259,  82  N.  W.  583. 


1 


669  landlord's  responsibility  for  coxditiox  of  premises,  [§  587 

obligation  the  landlord,  as  regards  his  tenant,  is  only  liable  for  acts 
of  misfeasance,  but  not  of  non-feasance.  If  the  landlord  is  not  bound 
to  repair,  unless  upon  covenant  to  do  so,  it  must  logically  follow  that 
any  injuries  arising  from  a  failure  on  his  part  to  repair  can  give  no 
cause  of  action  to  the  tenant,  whether  resulting  to  the  tenant's  goods 
or  to  his  person.  If  the  landlord  owes  no  duty  to  his  tenant  in  this 
regard,  then  certainly  negligence  cannot  be  imputed  to  him.^**  If  a 
landlord  leases  a  cellar  for  storing  goods,  and  represents  that  it  is  dry 
and  safe  from  water,  the  fact  that  its  walls  are  defectively  constructed, 
so  that  as  the  result  of  a  rainstorm  and  high  tide,  the  water  is  backed 
up  in  a  sewer  and  forced  into  the  cellar,  and  the  goods  are  injured, 
does  not  give  the  lessee  a  cause  of  action  in  tort  to  recover  damages. 
The  damage  does  not  result  from  any  affirmative  wrong  done  by  the 
landlord,  or  neglect  of  duty  on  his  part,  for  which  he  can  be  held  re- 
sponsible in  such  an  action.^^  In  New  Hanpshire  responsibility  in 
such  a  case  seems  to  rest  on  the  negligence  of  the  landlord  in  con- 
structing the  drain,  and  it  has  been  held  in  that  state  that  if  tenants, 
without  fault  on  their  part,  are  injured  by  the  flow  of  water  on  their 
goods,  the  landlord  is  liable,  provided  it  can  be  shown  he  was  guilty 
of  negligence  in  the  construction  of  the  drain  or  in  allowing  it  to  re- 
main out  of  repair  after  notice  of  its  condition.^- 

A  lessor  is  liable  for  his  improper  or  negligent  management  of 
parts  of  a  demised  building  not  included  in  a  lease,  whereby  the  lessee 
is  injured  and  this  result  does  not  encroach  on  the  rule  that  there  is 
no  implied  warranty  in  the  lease  of  a  building  that  it  is  well  built  or 
fit  for  any  particular  purpose.®^ 

§  587.  By  statute  in  Georgia  the  landlord  must  keep  the  prem- 
ises in  repair,  and  is  liable  for  all  substantial  improvements  placed 
upon  them  by  his  consent.^-*  He  is  not  responsible  to  third  persons 
for  damages  resulting  from  the  negligent  or  illegal  use  of  the  prem- 
ises by  the  tenant.  But  he  is  responsible  to  others  for  damages  aris- 
ing from  defective  construction,  or  for  damages  from  failure  to  keep 
the  premises  in  repair.^^  The  effect  of  these  sections  of  the  code  is  to 
make  a  landlo-rd  liable  to  his  tenant  for  injuries  caused  by  defects  in 
the  premises  of  which  he  had  notice  but  failed  to  repair.     Thus,  the 

»°Ward  V.  Fagin,  101  Mo.  669,  14  "' Railton  v.  Taylor,  20  R.  I.  279, 

S.  W.  738.  38  Atl.  980. 

"  People  v.  Walden,  51  Cal.  588.  "*  Civ.  Code,  §  3123. 

»=  Scott  v.   Simons,   54   N.   H.   426,  "» Civ.  Code,  §  3118. 
citing   Alston  v.   Grant,   3   E.   &    B. 
128,  77  E.  C.  L,  128. 


§    587]  RIGHTS    AND   LIABILITIES    OF    THE    PARTIES.  670" 

landlord  is  responsible  for  damage  caused  to  the  tenant's  goods  by  a 
leaky  rooP®  and  could  be  held  liable  for  personal  injuries  to  the  ten- 
ant caused  by  a  defect  in  the  premises.®'^  It  is  essential,  however,  to 
create  this  liability  that  the  landlord  shall  have  notice  of  the  lack  of 
repair  and  an  opportunity  to  remedy  the  defect.  He  is  not  liable 
when  he  has  no  notice  of  the  defect  and  has  not  been  notified  to  re- 
pair.^^  "The  use  of  the  tenements  really  belongs  to  the  tenant  during 
the  lease ;  they  are  his  property  to  use  for  the  term  for  which  they  are 
rented ;  and  the  landlord  has  no  right  to  enter  upon  them,  except  by 
permission  of  the  tenant  during  the  term."^®  Nothing  more  than  a 
general  notice  of  lack  of  repair  is  necessary,  however.  On  receiving 
such  notice  it  becomes  the  landlord's  duty  to  inspect  and  investigate 
in  order  that  he  may  make  such  repairs  as  the  safety  of  the  tenant  re- 
quires. It  follows,  therefore,  that  when,  after  such  notice,  the  land- 
lord fails  within  a  reasonable  time  to  make  the  repairs,  he  is  charge- 
able with  notice  of  all  the  defects  that  a  proper  inspection  would  dis- 
close.^°°  Xotice  from  the  tenant  of  the  need  of  repairs  is  not  neces- 
sary when  the  landlord  occupies  a  part  of  the  demised  premises,  and 
can  be  presumed  to  know  the  need  of  repairs.^"^  The  landlord  is  not 
liable  to  the  tenant  for  damages  resulting  from  unforeseen  and  extra- 
ordinary causes.  Thus  the  statutory  duty  of  landlord  to  repair  would 
not  make  him  liable  where  a  leased  storeliouse  was  unroofed  by  a  sud- 
den and  unusual  storm.^"^ 

The  extent  of  a  landlord's  liability  to  strangers  by  virtue  of  these 
statutes  is  somewhat  modified  by  the  general  common-law  doctrine. 
Thus,  the  acts  were  effective  to  create  a  liability  on  the  part  of  the 
landlord  for  a  defective  coal  hole  in  front  of  leased  premises  which 
caused  injury  to  a  traveler  on  the  highway.  The  landlord  had  notice 
of  the  defect  but  there  was  no  proof  that  it  existed  at  the  time  of  the 
demise.i"^  But  a  landlord  was  held  not  liable  for  injury  received  by 
a  person  from  falling  on  ice  which  had  been  allowed  by  the  tenants  to 
accumulate  and  remain  on  a  sidewalk  abutting  on  the  premises.  This 
was  true,  although  the  ditch  which  caused  the  water  to  accumulate 

^Guthman  v.  Castleberry,  48  Ga.  i""  Stack  v.  Harris,  111  Ga.  149,  36 

172;  Whittle  v.  Webster,  55  Ga.  180.  S.  E.  615. 

»^  Stack  v.  Harris,  111  Ga.  149,  36  "^  Guthman  v.  Castleberry,  49  Ga. 

S.  E.  615;  Archer  v.  Blalock,  97  Ga.  272;   White  v.  Montgomery,  58  Ga. 

719,  25  S.  E.  391.  204. 

"« Ocean  Steamship  Co.  v.  Hamil-  "^  Brunswick  &o.   Co.   v.   Spencer, 

ton,  112  Ga.  901,  38  S.  E.  204.  97  Ga.  764,  25  S.  K  764. 

»» White    V.    Montgomery,    58    Ga.  .  '<«  Collier  v.  Hyatt,  110  Ga.  317,  35 

204.  S.  E.  271. 


671     LIABILITY  IMPOSED  BY  LESSOR'S  AGREEMENT  TO  REPAIR.      [§    588 

was  on  the  premises  at  the  time  of  the  demise.  Taken  all  together 
the  ditch,  the  accumulation  of  water,  and  the  formation  of  ice 
amounted  to  a  nuisance.  This  nuisance  was,  however,  the  result  of  the 
acts  of  the  tenants  who  were  in  exclusive  possession  of  the  premises; 
and  under  such  circumstances  the  landlord  cannot  be  held  liable  in 
damages  for  injuries  resulting  to  a  person  from  a  nuisance  maintained 
by  a  tenant.^*** 

Even  in  Georgia  a  landlord  is  not  liable  for  damages  caused  by- 
defective  condition  of  premises  where  the  injury  is  caused  by  con- 
tributory negligence  of  tenant.  The  question  of  such  negligence 
must  be  determined  by  the  jury.^**^  The  common-law  rule  in  re- 
gard to  contributory  negligence  has  been  slightly  modified  by  a  code 
provision.  The  result  of  this  modification  has  been  stated  as  fol- 
lows: "If  the  injury  in  question  was  occasioned  by  the  negligence 
of  the  landlord  in  failing  to  repair,  the  plaintiff,  even  though  in  some 
degree  negligent,  could  nevertheless  recover  provided  her  negligence 
did  not  amount  to  a  want  of  ordinary  care,  the  exercise  of  which 
would  have  prevented  the  injury.  Negligence  on  her  part  short  of  a 
want  of  such  care  should  be  considered  by  the  jury  in  reducing  the 
damages.^"® 

II.    Liability  Imposed  hy  Lessor's  Agreement  to  Repair. 

§  588.  Lessor's  obligation  to  repair. — In  certain  respects  a  demise 
is  more  analogous  to  a  sale  of  a  limited  interest  in  the  premises  than 
to  any  other  transaction  the  lessee  becoming  the  temporary  owner. 
He  has  many  of  the  rights  of  an  owner  as  against  the  outside  world 
and  many  of  the  obligations  of  an  owner  as  well.  The  lessor  is  only 
interested  by  virtue  of  his  reversionary  right  and  by  whatever  stipu- 
lation he  has  made  for  the  payment  of  rent.  It  follows  where  there  is 
no  stipulation  on  the  part  of  the  landlord  to  repair  or  that  the  prem- 
ises shall  remain  in  tenantable  condition,  no  obligation  to  repair  is 
implied  from  the  relation.^*^'^  The  general  rule  is  undisputed  and  is 
settled  by  a  long  line  of  decisions  that  a  lessor  is  in  no  case  under 
obligation  to  make  repairs,  unless  by  force  of  an  express  covenant  or 

^<^  Gardner  v.  Rhodes,  114  Ga.  929,  81  Md.  315,   32  Atl.   515;    Elliott  v. 

41  S.  E.  63.  Aiken,  45  N.  H.  30;  Scott  v.  Simons, 

^»=  Johnson  v.  Collins,  98  Ga.  271,  54   N.  H.   426;    Sheets  v.   Selden,   7 

26  S.  E.  744.  Wall.     (U.    S.)     416,    423;     Gott    v. 

'"« Miller  v.  Smythe,  95  Ga.  288,  22  Gandy,  2   E.  &  B.   845,  75  E.  C.  L. 

S.  E.  532.  845;     Pomfret    v.    Ricroft,    1    Wm. 

"'Gallagher   v.   Button,   73   Conn.  Saund.    321;    Hart   v.   Windsor,    12 

172,  46  Atl.  819;  Gluck  v.  Baltimore,  M.  &  W,  68. 


§    589]  EIGHTS   AXD    LIABILITIES    OF   THE   PAETIES.  673 

contract  to  do  so,  or  from  statutory  enactment/*'^  It  necessarily  fol- 
lows that  the  landlord  owes  no  duty  and  is  under  no  obligation  to  re- 
pair in  a  case  where  he  has  expressly  covenanted  with  the  tenant  he 
shall  not  be  liable  to  make  repairs.  The  contract  of  the  parties  is 
then  the  measure  of  their  duties  and  liabilities.^"^  Even  when  prem- 
ises become  defective  by  reason  of  deterioration  or  decay,  the  landlord 
is  not  required  to  repair  in  the  absence  of  covenants  on  his  part  and 
rent  is  payable  even  when  demised  premises  become  untenantable  by 
inherent  defect,  provided  they  were  habitable  at  the  time  of  the  de- 
mise, there  being  no  fraud  on  the  part  of  the  landlord.^" 

§  589.  An  obligation  to  repair  cannot  be  placed  on  the  landlord 
without  clear  and  explicit  language  to  that  efEect.  Such  a  duty  can- 
not be  raised  by  inference.  The  landlord  may,  and  often  does,  volun- 
tarily make  particular  repairs  for  the  preservation  of  the  estate  and  the 
benefit  of  the  reversion,  as  well  as  to  induce  a  tenant  to  continue  a 
tenancy  which  otherwise  he  might  terminate  on  short  notice.  The 
fact  that  a  landlord  makes  some  repairs  creates  no  obligation  on  his 
part  to  make  others."^  If  repairs  are  made  by  the  landlord  with  such 
frequency  and  under  such  circumstances  'as  to  furnish  evidence  of  an 
agreement  between  the  parties  that  the  landlord  should  make  repairs, 

^"* Alabama:    Burks   v.    Bragg,    89  lina:    City  Council  v.   Moorhead,   2 

Ala.  204,  7  So.  156.     California:  Cal-  Rich.  L.  (S.  Car.)  430.    New  Jersey: 

lahan  v.  Loughran,  102  Cai.  476,  36  Heintze  v.  Bentley,  34  N.  J.  Eq.  562. 

Pac.   835;    Brewster   v.   DeFremery,  Texas:    Weinsteine  v.   Harrison,   66 

33  Cal.  341.     Connecticut:   Hatch  v.  Tex.   546,    1    S.   W.    626.     England: 

Stamper,    42    Conn.    28.      Indiana:  Gott  v.  Gandy,  2  E.  &  B.  845,  75  E. 

Mattler  v.  Strangmeier,  1  Ind.  App.  C.  L.  845;  Rhodes  v.  Bullard,  7  East 

556,  27  N.  E.  985;  Hanson  v.  Cruse,  116. 

155  Ind.  176,  57  N.  E.  904;   Kellen-  ^"^  Barrett  v.  Boddie,  158  111.  479, 

berger    v.   Poresman,    13    Ind.    475;  42  N.  E.  143;  Ely  v.  Ely,  80  111.  532; 

Estep  v.  Estep,  23   Ind.   114.     Ken-  Moffatt  v.  Smith,  4  N.  Y.  126;  Mum- 

tucky:  Proctor  v.  Keith,  12  B.  Mon.  ford  v.  Brown,  6  Cow.   (N.  Y.)   475; 

(Ky.)    252.     Maine:    Libbey  v.   Tol-  Corey  v.  Mann,  6  Duer  (N.  Y.)  679. 

ford,    48    Me.    316.      Massachusetts:  ""Petz  v.  Voigt  Brewing  Co.,  116 

McLean  v.  Piske  &c.  Co.,  158  Mass.  Mich.  418,  74  N.  W.  651;   Fisher  v. 

472,  33  N.  E.  499.     Michigan:   Clark  Thirkell,  21  Mich.  1,  22,  4  Am.  R. 

v.  Babcock,  23  Mich.  164.    Missouri:  422;   Gott  v.  Gandy,  2  E.  &  B.  845, 

Morse     v.     Maddox,     17     Mo.     569.  75  E.  C.  L.  845. 

Nebraska:     Murphy    v.    Illinois    &c.  ^"McLean   v.   Fiske   &c.    Co.,    158 

Bank,  57  Neb.  519,  77  N.  W.  1102;  Mass.  472,  33  N.  E.  499;  McKeon  v. 

Turner   v.   Townsend,   42    Neb.    376,  Cutter,  156  Mass.  296,  31  N.  E.  389; 

60  N.  W.  587.     New  York:  Witty  v.  Mattler  v.  Strangmeier,  1  Ind.  App. 

Matthews,  52  N.  Y.  512;  McAlpin  v.  556,  27  N.  E.  985. 
Powell,  70  N.  Y.  126.     South  Caro- 


673     LIABILITY  IMPOSED  BY  LESSOR'S  AGEEEMEXT  TO  REPAIR.      [§    590 

the  natural  inference  would  be,  in  regard  to  portions  of  the  property 
in  use  and  peculiarly  under  the  observation  of  the  tenant,  that  the 
landlord  was  to  repair  on  notice  of  defects,  and  not  that  he  should  as- 
sume to  inspect  the  property  so  frequently  as  to  discover  and  remedy 
all  defects  without  notice.  ^^^  A  provision  in  the  lease  that  the  "prem- 
ises shall  be  at  all  times  open  to  the  inspection  of  said  lessor  or  his 
agents,  to  applicants  for  purchase  or  lease,  and  for  necessary  repairs," 
does  not  prove  that  repairs  made  by  the  landlord  were  made  in  pur- 
suance of  a  contract.  The  lease  contained  no  express  agreement  to 
repair,  and  the  jury  were  not  at  liberty  to  read  such  an  agreement 
into  it  by  the  aid  of  the  reservation  to  the  lessor  of  a  right  of  entry  to 
make  necessary  repairs.^^^ 

The  reparation  of  a  fire-escape  would  hardly  come  within  the  range 
of  ordinary  repairs  to  a  building.  It  would  be  extremely  difficult  to 
define  the  limits  of  a  statutory  duty  to  maintain  fire-escapes,  unless  it 
devolved  upon  the  owner  in  a  tenement  house  occupied  by  many  per- 
sons. Even  if  such  a  duty  might  be  assumed  by  another,  under  an  ex- 
press agreement,  it  could  not  be  considered  as  constituting  a  part  of 
the  obligations  of  a  tenant  who  hired  without  any  agreement  as  to  re- 
pairs. But  though  a  landlord  is  bound  to  repair  fire-escapes,  he  owes 
no  duty  to  keep  them  safe  for  children  to  play  on.  A  child  is  a  tres- 
passer when  he  enters  upon  the  fire-escape  and  occupies  the  position 
of  one  who  comes  upon  the  property  of  another  without  right.  Such  a 
person  can  maintain  no  action,  and  even  a  license  is  not  a  protection 
unless  some  inducement  or  enticement"  is  held  out  by  the  owner.  The 
child  clearly  had  no  right  to  go  upon  the  platform  and  was  there  for 
no  legitimate  purpose.  It  was  not  intended  for  any  such  use,  but  was 
to  be  used  as  a  protection  of  life  in  case  of  danger  from  fires,  and  was 
not  intended  as  a  balcony.^^* 

§  590.  Payment  by  landlord  for  repairs  made  by  tenant. — If  the 
landlord,  after  the  lease  is  entered  into,  and  being  under  no  legal 
obligation  to  make  repairs,  promises  to  make  them,  the  promise  will 
not  support  an  action.  By  law  the  duty  to  repair  devolves  on  the  ten- 
ant. The  landlord's  promise  is  without  consideration.  It  is  no  part  of 
the  original  agreement,  having  been  made  while  the  tenant  was  occu- 
pying the  premises.    A  mere  promise  by  a  landlord  to  repair  the  de- 

1"  McLean   v.   Fiske   &c.    Co.,    158  "'  Gulliver  v.  Fowler,  64  Conn.  556, 

Mass.  472,  33  N.  E.  499;  Hutchinson  30  Atl.  852. 

V.  Cummings,  156  Mass.  329,  31  N.  "*  McAlpin  v.  Powell,  70  N.  Y.  126. 

E.  127.  26  Am.  R.  555. 

Jones  L.  &  T.— 43 


§    590]  RIGHTS    AXD   LIABILITIES    OF    THE    PARTIES. 

raised  premises  before  the  tenant's  term  expires,  upon  the  agreement 
that  he  will  not  abandon  the  property,  is  without  consideration  and 
cannot  be  enforced.^^^  However,  an  agreement  between  lessor  and 
lessee  for  the  making  of  repairs,  the  costs  of  which  are  to  be  borne 
jointly  by  the  two,  is  valid  and  enforcible.  It  was  urged  that  the 
undertaking  on  the  landlord's  part  was  without  consideration,  and  to 
support  this  argument  several  cases  were  cited  to  the  effect  that  for 
one  to  agree  to  do  what  he  is  already  bound  to  do,  or  for  one  to  waive 
a  legal  obligation  on  the  part  of  the  other,  is  nudum  pactum;  but  that 
is  not  this  case.  The  lease  did  not  require  any  particular  repairs  or  im- 
provements to  be  made.  The  tenant  was  not  obliged  to  make  any  im- 
provements, and  the  agreement  to  make  and  in  part  to  pay  for  the 
particular  improvements  which  were  made  was  a  sufficient  considera- 
tion for  the  landlord's  promise  to  pay  for  the  remainder.^  ^^ 

Since  the  obligation  of  a  landlord  to  repair  or  rebuild  leased  prem- 
ises rests  solely  on  express  contract,  it  follows  that  when  the  landlord 
is  not  bound  to  repair  he  is  not  bound  to  pay  for  repairs  made  by  the 
tenant. ^^^  It  was  argued  that  destruction  of  a  window  by  a  storm 
was  an  inevitable  accident,  and  for  that  reason  the  tenant  could  not  be 
compelled  to  restore  the  premises,  or  to  pay  for  its  restoration  by  the 
landlord,  and  therefore  that  the  landlord  is  liable  for  the  restoration 
of  the  window.  This  result  does  not  follow  even  though  the  destruction 
was  by  inevitable  accident,  so  that  the  tenant  would  not  have  been 
bound  to  restore  the  premises  at  the  expiration  of  the  term  of  the 
lease."^  The  tenant  must  determine  for  himself  the  fitness  of  the 
buildings  for  use  or  whether  they  are  sufficiently  commodious  for  his 
purpose.  If  he  repairs  or  enlarges  the  buildings  for  his  own  con- 
venience, even  though  it  be  by  the  persuasion  of  the  landlord,  he  does 
not,  in  the  absence  of  agreement  or  promise,  thereby  acquire  a  right  to 
charge  the  landlord  with  the  expense  of  the  repairs.  The  failure  of  a 
landlord  to  erect  a  house  according  to  his  agreement  does  not  author- 
ize the  tenant  to  charge  the  cost  of  repairing  another  house  on  the 
landlord."^    A  tenant  who  makes  improvements  of  a  permanent  and 

"'  Eblin  v.  Miller,  78  Ky.  371 ;  Lib-  linois  &c.  Bank,  57  Neb.  519,  77  N. 

bey  v.  Tolford.  48  Me.  316,  77  Am.  W.    1102;    Turner  v.   Townsend,    42 

Det.  229.  Neb.  376,  60  N.  W.  587. 

""Woodwortn     v.     Thompson,     44  "« Turner    v.    Townsend,    42    Neb. 

Neb.  311,  62  N.  W.  450-  376,  60  N.  W.  587. 

"'  Mull    v.    Graham,    7    Ind.    App.  "'  Hopkins  v.  RatlifE,  115  Ind.  213, 

561,    35    N.   E.    134;    Witty   v.    Mat-  17  N.  E.  288. 
thews,  52  N.  Y.  512;   Murphey  v.  11- 


675      LIABILITY  IMPOSED  BY  LESSOR'S  AGREEMEXT  TO  REPAIR,       [§    591 

fixed  character  can  neither  remove  them  or  recover  for  their  cost  with- 
out a  special  contract  with  the  landlord.^ ^^ 

§  591.  Exempting  lessee  from  obligation  to  repair. — A  common 
form  of  lease  binds  the  lessee  to  keep  the  premises  in  repair  except  as 
to  unavoidable  accidents  and  usual  wear  and  tear.  In  such  a  case  it 
seems  that  the  law  will  not  imply  a  contract  on  the  part  of  the  lessor 
to  repair  damages  caused  by  unavoidable  accident.  A  tenant  sued  his 
landlord  in  assumpsit  because  the  landlord  failed  to  repair  a  wall 
which  had  become  ruinous.  A  demurrer  to  the  declaration  was  sus- 
tained. There  appears  to  have  been  no  express  covenant  for  quiet 
enjoyment  or  to  repair  damages  caused  by  unavoidable  accidents,  and 
such  a  contract  will  not  be  implied.  No  implied  covenant  to  rebuild 
or  repair  damages  on  the  part  of  the  landlord  arises  at  common  law 
from  an  exception  of  casualties  by  fire,  tempest  or  other  causes  in  the 
tenant's  covenant  to  repair.^ ^^ 

§  592.  The  landlord's  responsibility  for  damages  caused  by  his 
failure  to  perform  his  contract  to  repair  rests  altogether  upon  his 
breach  of  contract.  Thus  in  a  case  where  a  landlord  agreed  to  repair, 
but  failed  to  do  so  after  being  notified  of  the  necessity  for  repairs, 
plaster  fell  and  injured  the  tenant's  goods.  The  tenant  was  not  guilty 
of  contributory  negligence  because  ignorant  of  the  liability  of  plaster 
to  fall.  The  court  allowed  the  tenant  to  recover  for  the  injury  suf- 
fered in  an  action  of  assumpsit.  There  is  no  reason  why  the  landlord 
should  not  be  liable  for  a  breach  of  his  contract,  just  as  any  other 
person  who  is  a  party  to  a  contract  would  be.  Where  he  has  violated 
his  contract  he  should  be  liable  for  all  the  injuries  resulting  there- 
from.^-^ 

But  it  may  be  stated  as  a  general  rule  that  a  landlord,  who  has 
covenanted  to  repair,  is  not  liable  in  tort  for  personal  injuries  result- 
ing from  the  want  of  repair.^^^   Such  injuries  are  too  remote  to  be  re- 

"» Hedderich   v.    Smith,    103    Ind.  43  How.  Pr.  (N.  Y.)  333;  Arnold  v. 

203,  53  Am.  R.  509.  Clark,  45  N.  Y.  Super.  Ct.  252;  Tut- 

"1  Kline  v.  McLain,  33  W.  Va.  32,  tie   v.   G.   H.   Gilbert   Mfg.   Co.,    145 

10  S.  E.  11;  Clifton  v.  Montague,  40  Mass.  169,   13  N.  B.   465;    Feary  v. 

W.  Va.   207,   21   S.  E.   858;    Weigall  Hamilton,  140  Ind.  45,  39  N.  E.  516, 

V.  Waters,  6  Term  R.  488.  affirming  8    Ind.   App.   615,   52   Am. 

"=  Mason  v.  Howes,  122  Mich.  329,  St.  485;   Hanson  v.  Cruse,  155  Ind. 

81  N.  W.  111.  176,  57  N.  E.  P04;   New  York  Acad- 

"' Collins  v.  Karatopsky,  36  Ark.  emy  &c.  v.  Hackett,  2  Hilt.   (N.  Y.) 

316;  Kabus  v.  Frost,  50  N.  Y.  Super.  217;  Pryor  v.  Foster,  130  N.  Y.  171, 

Ct.    72;    Spellman    v.    Bannigan,    36  29    N.    E.    123;    Sanders    v.    Smith, 

Hun   (N.  Y.)   174;  Flynn  v.  Hatton,  5   Misc.    (N.  Y.)    1;    Brown   v.   To- 


§'   592]  RIGHTS   AND  LIABILITIES   OF   THE   PARTIES.  6761 

covered  as  damages  for  the  breach  of  contract  and  the  duties  arising 
from  the  relation  of  landlord  and  tenant  are  not  increased  by  such  a 
contract  in  respect  to  the  duty  of  the  landlord  to  provide  for  the  per- 
sonal safety  of  the  tenant.  In  a  recent  case  on  this  point  it  was  said : 
"Under  the  contract,  appellant  (the  lessee)  was  entitled  to  the  repairs 
or  to  damages  for  the  breach  of  contract.  Appellees  (the  lessors) 
broke  their  contract  and  are  liable  in  damages.  But  what  is  the 
measure?  On  principle,  the  landlord,  who  is  paid  by  the  tenant  to 
make  repairs  that  he  is  not  otherwise  under  obligation  to  make,  should 
be  held  to  exactly  the  same  liability  that  a  stranger-contractor  would 
incur.  Damages  for  personal  injuries  resulting  from  the  mere  con- 
tinuance of  obvious  defects  such  as  existed  here  and  which  the  tenant 
has  contracted  to  have  repaired,  are  not  recoverable  from  the  con- 
tractor. They  are  deemed  to  be  too  remote  and  are  not  within  the 
contemplation  of  the  parties  at  the  time  the  contract  was  made.  The 
injury  is  attributable  to  the  tenant's  want  of  care  in  the  use  of  the 
property  rather  than  to  the  contractor's  breach."^^*  The  cases  even 
go  so  far  as  to  hold  that  it  is  immaterial  that  the  landlord  has  been 
notified  of  the  need  of  repair  and  has  failed  for  an  unreasonable  time 
to  make  the  repairs.^^^  Ordinary  damages  for  breach  of  a  general 
covenant  to  keep  the  premises  in  repair  are  the  expenses  of  repair  and 
the  loss  of  the  premises  while  the  party  contracting  was  in  default. 
Such  an  agreement  in  no  way  contemplates  any  destruction  of  life  or 
casualties  to  the  person  or  property  which  might  accidentally  result 
from  an  omission  to  fulfill  the  agreement.^-^ 

Where  injuries  under  such  circumstances  were  admittedly  too  re- 
mote to  be  recovered  in  an  action  of  contract,  it  was  claimed  they 
could  be  recovered  in  an  action  of  tort.  But  to  permit  a  recovery  for 
such  damages,  based  on  the  contract  simply  because  it  is  in  the  form 
of  an  action  of  tort,  would  be  making  a  distinction  that  could  not  be 
justified  by  reason  or  authority.  There  must  be  something  more  than 
a  mere  failure  on  the  part  of  the  landlord  to  make  the  repairs  he  has 
agreed  to  make.  It  makes  no  difference  whether  the  form  of  the  action 
is  ex  delicto  or  ex  contractu,  the  real  and  substantial  gravamen  of  the 
complaint  is  the  alleged  breach  of  contract,  and  in  such  a  case  the 
same  law  is  applicable  to  both  classes  of  actions.    A  landlord,  under 

ronto  General  Hospital,  23  Ont.  599;  "^  Brown  v.  Toronto  General  Hos- 

Ploen    V.    Staff,    9    Mo.    App.    309;  pital,  23  Ont.  599. 

Thompson  v.   Clemens,  96  Md.   196,  '=*Flynn   v.   Hatton,  43   How.   Pr. 

53  Atl.  919.  (N.  Y.)  333. 

"*  Hanson  v.  Cruse,  155  Ind.  176, 

57  N.  E.  904,  per  Baker,  C.  J.  . 


677      LIABILITY  IMPOSED  BY  LESSOR'S  AGREEMENT  TO  REPAIR.      [§    593 

contract  to  repair,  may,  under  some  circumstances,  be  liable  for  dam- 
ages for  personal  injuries  by  reason  of  a  negligent  failure  to  make 
repairs;  but  in  such  case  his  negligence  must  be  firmly  established  as 
a  basis  for  the  liability.  ^^^ 

The  tenant's  only  remedy  is  to  make  the  repairs  at  the  expense  of 
the  landlord.^^^  In  the  case  of  slight  repairs,  the  tenant  is  justified 
after  notice  of  want  of  repair  and  the  lapse  of  a  reasonable  time,  to 
expend  what  is  needed  in  making  the  repairs  and  charge  it  against  his 
landlord  or  take  it  out  of  his  rent.^-^ 

§  593.  Notice  to  landlord  of  need  of  repairs. — The  contract  of  a 
landlord  to  attend  to  all  repairs  is  not  equivalent  to  a  guaranty  that 
the  premises  should  not  become  unsafe  or  insecure  through  lack  of 
repair.  The  contract  does  not  require  that  the  premises  shall  be  pre- 
vented from  getting  out  of  repair,  but  rather  implies  that  they  are 
liable  to  become  so.  Such  an  agreement  only  binds  the  landlord  to  a 
reasonable  degree  of  care  in  inspecting  the  premises  and  reasonable 
diligence  and  promptness  in  making  necessary  repairs.  ^^'^  In  fact  a 
tenant  cannot  sue  his  landlord  for  breach  of  his  covenant  to  make  re- 
pairs until  notice  of  the  need  of  repairs  has  been  given.  Notice  by  the 
tenant  of  the  defects  complained  of  is  essential  before  there  can  be  a 
breach  of  the  covenant.  This  rule  is  reasonable  and  convenient.  By 
casting  the  initiative  on  the  tenant  it  leaves  to  him  the  power  of  hav- 
ing the  landlord's  repairs  executed  at  times  and  under  circumstances 
convenient  to  himself.  By  securing  notice  to  the  landlord,  it  gives  him 
the  control  which  he  ought  to  have  over  the  extent  and  mode  of  re- 
pair.^^^ 

It  is  to  be  implied  under  the  circumstances  of  most  cases  that  the 
landlord  is  to  repair  only  on  reasonable  notice.  The  mere  want  of 
repair,  therefore,  shows  no  such  negligence  as  will  support  an  action 
in  favor  of  the  tenant  or  any  sub-tenant  for  injury  caused  by  an  acci- 
dent occurring  from  the  lack  of  repair.    If  no  complaint  had  been 

"'Thompson   v.    Clemens,   96    Md.  ""Frank  v.   Conradi,   50   N.   J.   L. 

196,  53  Atl.  919,  citing  Baltimore  &c.  23,   11  Atl.    480;    Spellman  v.   Ban- 

R.    Co.    v.    Pumphrey,    59    Md.    390,  nigan,    36    Hun    (N.    Y.)    174.      See 

398.  McLean  v.  Fiske  &c.  Co.,  158  Mass. 

"'Brown  v.  Toronto  General  Hos-  472,    33    N.    E.    499;    Hutchinson    v. 

pital,  23  Ont.  599.  Cummings,  156  Mass.  329,  31  N.  E. 

""Beale  &  Taylor's  Case,  1  Leon.  127. 

237;    Makin  v.   Watkinson,  L.   R.   6  "^  Huggall  v.  McKean.   1  C.  &  E. 

Exch.  25,  29;  Huggall  v.  McKean,  1  391;    Makin  v.  Watkinson,   L.   R.   6 

C.  &  E.  391,  394.     But  see  Weigall  Exch.  25. 
V.  Waters,  6  Term  R.  488. 


§    594]  RIGHTS   AXD   LIABILITIES    OF   THE   PARTIES.  678 

made,  and  it  did  not  appear  that  the  landlord  knew  the  condition  of 
the  premises,  no  negligence  on  his  part  can  be  shown.^^^  So  where  a 
roof  weighted  with  snow  fell,  the  landlord  was  bound  to  restore  the 
roof  because  of  his  covenant  to  repair,  but  he  was  not  obliged  to  make 
good  the  damage  caused  by  the  accident,  because  he  had  no  notice  of 
the  lack  of  repair.  In  such  a  case  the  landlord  does  not  covenant  that 
the  building  will  not  give  way,  but  that,  if  it  does,  he  will  repair  it, 
he  cannot  therefore  be  held  liable  for  damages  occasioned  by  the  fall 
of  the  building.^^^  Notwithstanding  a  landlord's  covenant  to  keep  the 
external  parts  of  a  building  in  good  repair,  he  is  entitled  to  a  reasona- 
ble opportunity  to  make  repairs,  and  he  is  not  bound  to  bear  the  ex- 
pense of  finding  the  tenant  another  residence  while  the  repairs  go 
on.^'* 

Where  a  landlord  covenanted  to  repair,  but  the  tenant  failed  to  no- 
tify him  of  the  need  of  repairs  and  invited  a  person  on  the  premises 
who  was  injured  by  a  defective  step,  the  tenant  who  occupied  was 
prima  facie  liable  for  such  injury  and  the  landlord  was  not  liable 
even  on  his  covenant  to  repair,  because  he  had  not  been  notified  of  the 
need  of  repairs.^^^  The  determining  consideration  in  fixing  liability 
between  lessor  and  lessee  in  cases  of  this  kind  is,  who  was  in  control 
of  the  apparatus  at  the  time  of  the  accident.  A  lessor's  agreement  to 
keep  an  elevator  in  repair  at  his  own  cost  does  not  put  him  in  posses- 
sion, and  so  he  is  not  liable  for  a  fall  of  the  elevator.^^*'  But  where  the 
landlord  had  control  of  a  hoisting  apparatus  he  was  liable  to  a  tenant 
for  an  injury  caused  by  a  defect. ^^^ 

§  594.  Another  ground  on  which  the  landlord's  freedom  from  re- 
sponsibility can  be  placed  is  the  doctrine  of  contributory  negligence. 

Continued  use  by  the  tenant  with  knowledge  of  the  dangerous  condi- 
tion is  a  clear  assumption  of  the  risk  of  accident  which  is  not  relieved 
by  the  landlord's  promise  to  repair.^^^  Knowing  the  premises  are 
unsafe,  the  liability  of  danger  great,  and  the  expense  of  repairs  trifling, 
it  is  the  plain  duty  of  the  tenant  to  make  them  and  thus  save  his 
family  from  the  threatened  danger."^    It  is  but  a  matter  of  common 

"=Marley     v.     Wheelwright,     172  "' Sinton    v.    Butler,    40    Ohio    St. 

Mass.  530,  52  N.  E.  1066;    Sinton  v.  158. 

Butler,   40   Ohio  St.   158;    Lieber  v.  "^  O'Malley  v.  Twenty-five  Associ- 

Blanc,  76  Cal.  173,  18  Pac.  260.  ates,   170   Mass.   471,   49   N.   E.    641, 

^^  Leavitt    v.    Fletcher,    10    Allen  strong  dissent  by  Holmes.  J. 

(Mass.)  119.  '^McGinn  v.  French,  107  Wis.  54, 

»^  Green  v.  Eales,  2  A.  &  E.    (N.  82  N.  W.  724. 

S.)   225,  42  E.  C.  L.  648.  "« Cook  v.  Soule,  56  N.  Y.  420. 

"» Ploen  V.  Staff,  9  Mo.  App.  309. 


•679      LIABILITY  IMPOSED  BY  LESSOR'S  AGREEMEXT  TO  REPAIR.      [§    595 

prudence  and  the  tenant,  knowing  the  danger  of  loss  or  injury  to  be 
great  cannot  continue  to  use  the  dangerous  premises,  and  hide  behind 
a,  promise  to  repair.^*"  Where  the  injured  party  has  assumed  the  risk, 
the  landlord  is  not  liable  for  an  accident  caused  by  a  defective  con- 
struction in  a  common  stairway  of  a  tenement,  even  though  the  land- 
lord be  guilty  of  negligence  in  not  replacing  the  defective  part.^*^ 

It  has  been  suggested,  however,  that  although  a  tenant  may  know 
that  premises  are  out  of  repair,  he  may  not  be  in  a  position  to  realize 
that  the  continued  use  of  them  is  dangerous.  The  question  as  to 
whether  or  not  he  was  in  the  exercise  of  due  care  is  a  question  of  fact 
to  be  passed  upon  by  a  jury ;  and  to  convict  the  tenant  of  negligence, 
it  is  necessary  to  show  not  only  that  the  premises  were  defective,  but 
that  the  tenant  knew  of  the  danger.  If  they  were  out  of  repair,  but 
not  so  obviously  so  as  that  a  person  of  ordinary  prudence  must  have 
known  they  were  dangerous,  then  he  is  entitled  to  go  to  the  jury  upon 
the  question  as  to  whether  there  was  an  apparent  danger  in  their  use.^*^ 

§  595.     Rights  conferred  on  third  persons  by  a  covenant  to  repair. 

A  landlord's  covenant  to  keep  leased  premises  in  repair  does  not 
render  him  liable  to  a  lodger,  sub-tenant,  or  stranger  who  suffers  in- 
jury through  a  defect  in  the  premises. ^*^  "The  general  rule  of  law 
undoubtedly  is  that  persons  who  claim  damages  on  the  ground  that 
they  were  invited  into  a  dangerous  place,  where  they  received  injuries, 
must  seek  their  remedy  against  the  person  who  invited  them.  There 
is  nothing  in  the  relation  of  landlord  and  tenant  which  changes  this 
rule.  ...  If  the  landlord  warrants  their  fitness,  the  covenant  stands 
for  the  benefit  of  the  lessee  and  not  for  the  benefit  of  strangers  to 
the  contract.  And  so,  if  the  lessor  engages  with  the  lessee,  to  keep  the 
premises  in  repair,  a  breach  of  the  agreement  gives  a  right  of  action 
only  to  the  lessee.""* 

That  one  who  is  no  party  to  a  contract  of  letting  cannot  sue  in  re- 
spect of  a  breach  of  duty,  arising  out  of  the  contract,  in  an  action  of 

""  Town   v.   Armstrong,    75    Mich.  '"  Quay  v.  Lucas,  25  Mo.  App.  ,4 ; 

580,  42  N.  W.  983;   Purcell  v.  Eng-  Burdick  v.  Cheadle,  26  Ohio  St.  393, 

lish,    86    Ind.    34,    44    Am.    R.    255;  397;   Clancy  v.  Byrne,  56  N.  Y.  129, 

Miller  v.   Mariner's   Church,   7   Me.  15  Am.  R.  391;  Donaldson  v.  Wilson, 

51;    Kampinsky  v.   Hallo,   52   N.   Y.  60  Mich.  86,  26  N.  W.  842;  O'Leary 

St.  265.  V.  Delaney,  63  Me.  584. 

>"  Vorrath  v.  Burke,   63  N.  J.  L.  "'  Burdick  v.  Cheadle,  26  Ohio  St. 

188,  42  Atl.  838.  393,  397,  quoted  in  Quay  v.  Lucas, 

i«  Johnson  v.  Collins,  98  Ga.  271,  25  Mo.  App.  4. 
26  S.  E.  744. 


§    596]  RIGHTS   AND  LIABILITIES    OF    THE   PARTIES.  680 

tort  is  decided  on  similar  principles."^  The  general  rule  whether  ap- 
plied to  contracts  of  letting  or  other  contracts  was  very  fully  discussed 
in  an  English  case/*®  where  all  the  judges  seriatim  in  exhaustive 
opinions  decided  that  the  party  to  the  contract  alone  can  maintain 
the  action.  "Doubtless  where  a  covenant  creates  a  duty,  a  neglect 
to  perform  that  duty  is  a  ground  of  action  for  tort.  But  whenever 
an  action  is  founded  on  a  breach  of  contract,  the  plaintiff  suing  in 
respect  thereof,  must  be  a  party  or  privy  to  the  contract ;  else  he  fails 
to  show  a  duty  towards  himself."^*^ 

In  a  Massachusetts  case,  where  an  accident  had  been  caused  by  a 
defect  in  the  sidewalk  in  front  of  leased  premises,  and  the  landlord 
was  under  no  obligation  to  repair,  Chief  Justice  Shaw  made  the  fol- 
lowing suggestion :  "If,  indeed,  there  be  an  express  agreement  between 
landlord  and  tenant,  that  the  former  shall  keep  the  premises  in  re- 
pair, so  that  in  the  case  of  a  recovery  against  the  tenant,  he  would  have 
his  remedy  over,  then  to  avoid  circuity  of  action,  the  party  injured 
by  the  defect  and  want  of  repair,  may  have  his  action  in  the  first  in- 
stance against  the  landlord.""®  For  authority  reference  is  made  to 
an  English  case,"^  for  an  injury  sustained  by  a  plaintiff  by  his  leg 
slipping  through  a  hole  in  the  foot  pavement,  into  a  vault,  owing  to 
some  plates  being  out  of  repair.  It  was  held  that  an  action  could  be 
brought  directly  against  the  landlord,  on  his  covenant  to  repair,  to 
avoid  circuity  of  action. 

§  596.  Liability  of  landlord  for  unsafe  repairs. — A  landlord  whose 
neglect  to  use  ordinary  skill  in  making  repairs  on  the  demised  prem- 
ises causes  a  personal  injury  to  the  tenant,  is  liable  therefor,  although 
his  undertaking  to  make  the  repairs  was  gratuitous  and  by  the  ten- 
ant's solicitation.^^*'     Where  a  landlord  made  such  repairs  in  per- 

"''Robbins  v.  Jones,  15  C.  B.   (N.  131,  19  Atl.  108;   Gill  v.  Middleton, 

S.)   221,  238,  109  E.  C.  L.  221.  105  Mass.  477;    Little  v.  McAdaras, 

""Alton  v.  Midland  R.,  19  C.  B.  (N.  38     Mo.     App.     187;      Glickauf     v. 

S.)   213,  115  E.  C.  L.  213.  Maurer,  75  111.  289;   Wertheimer  v. 

"'Clancy  v.  Byrne,  56  N.  Y.  129,  Saunders,  95  Wis.  573,  70  N.  W.  824; 

15  Am.  R.  391,  per  Polger,  J.  Evans   v.    Murphy,    S7   Md.    498,    40 

"5  Lowell    V.    Spaulding,    4    Gush.  Atl.  109;   Jobnson  v.  Collins,  98  Ga. 

(Mass.)   277.  271,    26    S.    E.    744;    Lamparter    v. 

"''Payne  v.  Rogers,  2  H.  Bl.  350.  Wallbaum.    45    111.    444;    Benson   v. 

See  also,  Fisher  v.  Thirkell,  21  Mich.  Suarez,  43  Barb.  (N.  Y.)  408;  Calla- 

1,  4  Am.  R.  422;    Perez  v.  Rabaud,  ban  v.   Loughran,   102   Cal.   476,   36 

76  Tex.  191,  13  S.  W.  177.  Pac.  835;  Leslie  v.  Pounds,  4  Taunt. 

^^"Mann  v.  Fuller,  63  Kan.  664,  66  649. 
Pac.   627;    Gregor  v.   Cady,   82   Me. 


681      LIABILITY  IMPOSED  BY  LESSOR'S  AGREEMENT  TO  REPAIR.      [§'   596 

son  and  represented  them  to  be  safe,  but  they  were  so  negligently 
made  that  the  tenant's  wife  fell  and  was  injured,  it  was  argued,  that 
upon  a  gratuitous  undertaking  of  this  nature,  the  defendant  could  only 
be  held  responsible  for  bad  faith  or  for  gross  negligence.  But  the  re- 
ply was  that  in  assuming  to  make  the  repairs,  the  landlord  professed 
to  have  the  requisite  skill  as  a  mechanic  to  accomplish  the  desired 
result.  The  true  question  for  the  jury  was,  whether  the  defendant  had 
discharged  the  duty  which  he  assumed,  with  due  regard  to  the  rights 
of  others. ^^^  The  landlord  has  been  held  liable,  generally,  in  such  a 
case  without  regard  to  the  inquiry  whether  he  acted  in  person  or 
through  a  servant  ;^^^  and  he  has  been  held  liable  in  cases  where  the 
work  was  admittedly  performed  through  a  servant  or  agent,  who 
presumably  was  not  an  independent  contractor.^^^ 

However,  a  different  rule  has  been  outlined  and  applied  to  a  case 
where  gratuitous  repairs  made  by  the  landlord  were  performed  through 
the  agency  of  a  servant.  This  rule  only  puts  on  the  landlord  the  obli- 
gation to  secure  a  skillful  workman.  In  support  of  this  view  the 
Kentucky  court  said:  "The  landlord  did  not  agree  to  do  the  work 
with  his  own  hands,  or  to  supervise  its  execution,  nor  did  he  pretend 
to  do  either.  His  agreement  was  to  have  the  work  done  by  another 
person.  As  we  have  already  seen,  the  agreement  was  wholly  gra- 
tuitous, and  he  was  only  bound  to  do  properly  that  which  he  undertook 
to  do,  and  he  did  that  if  he  sent  a  suitable  person  to  do  the  work,  and 
is  not  responsible  for  that  person's  negligence  or  unskillfulness."^^* 
Of  course,  where  the  landlord  employes  an  improper  and  unskillful 
person  to  make  alterations  in  a  leased  building,  he  is  liable  for  injury 
caused  by  the  workman's  lack  of  skill.  This  is  so  even  though  the 
landlord  would  not  be  liable  if  he  had  employed  an  independent  con- 
tractor.^^^ 

i"Gill    v.    Middleton,    105    Mass.  through   the   want   of   due   care   by 

477,  to  same  effect  Gregor  v.  Cady,  which  damage  ensues  to  the  other 

82  Me.  131,  19  Atl.  108.     In  the  note  party,    an    action    will    lie    for    this 

to  Coggs  v.   Bernard,   Smith   Lead,  misfeasance." 

Gas.    (6th  Am.  ed.)    355,  it  is  said:  "'Mann  v.  Fuller,  63  Kan.  664,  66 

"A   distinction   exists  between  non-  Pac.  627. 

feasance  and  misfeasance,— between  '"  Little  v.  McAdaras,  38  Mo.  App. 

a  total  omission  to  do  an  act  which  187;   Evans  v.  Murphy,  87  Md.  498, 

one  gratuitously  promises  to  do  and  40  Atl.  109. 

a  culpable  negligence  in  the  execu-  "*  Eblin  v.  Miller,  78  Ky.  371,  per 

tion  of  it.     .     .     .     If  a  party  makes  Gofer,  J. 

a  gratuitous  engagement  and  actu-  ^"  Evans  v.   Murphy,   87  Md.  498, 

ally   enters    upon    the    execution    of  40  Atl.  109. 
the    business    and    does    it    amiss 


§    596]  RIGHTS    AXD    LIABILITIES    OF    THE   PARTIES.  G82 

It  seems  obvious  that  there  must  be  some  negligence  for  which  the 
landlord  is  responsible  in  order  to  make  him  liable.  Thus  a  tenant 
could  not  recover  for  an  injury  suffered  by  reason  of  the  removal  of 
steps  during  the  making  of  repairs^,  such  removal  being  necessary 
and  proper.  An  emergency  arose  and  the  tenant  attempted  to  de- 
scend by  sliding  down  to  the  ground.  She  fell  and  was  injured  in 
this  attempt;  but  the  fall  was  clearly  occasioned  by  her  own  negli- 
gence or  was  attributable  to  accident  alone.^^®  Quite  a  different  case 
was  that  where  a  building  which  was  being  raised  by  the  landlord  fell 
on  a  clerk  of  the  tenant  who  had  gone  under  it  for  a  purpose  in  con- 
nection with  his  master's  business.  The  accident  was  due  to  neglect 
in  not  securely  proping  up  the  building. ^^^  Pending  the  doing  of  the 
work  of  repair  the  tenant  assumes  the  risk  in  using  the  part  of  the 
premises  which  are  undergoing  repairs.  So  when  a  tenant  thought 
the  rebuilding  of  a  flight  of  steps  had  been  completed  and  fell  while 
descending  them  in  consequence  of  a  loose  board,  the  landlord  was  not 
liable,  as  he  had  been  guilty  of  no  undue  postponement  of  the  work. 
It  was  the  tenant's  duty  while  repairs  were  progressing  to  make  sure 
that  the  repairs  were  completed  or  that  the  descent  of  the  stairs  was 
safe.^^^ 

The  intervening  criminal  act  of  a  third  person  will  relieve  a  land- 
lord from  liability  for  negligence  in  making  repairs  on  the  leased 
premises.  Thus  where  the  servants  of  a  landlord  negligently  left 
windows  open  and  a  burglar  stole  the  tenant's  goods,  the  landlord  was 
not  responsible  for  the  loss.  The  repairs  were  on  a  part  of  the  build- 
ing occupied  by  the  landlord  and  a  partition  had  been  taken  away, 
exposing  the  tenant's  stock  of  goods,  but  there  intervened  as  the  di- 
rect cause  an  independent  criminal  act.  The  landlord's  negligence 
may  have  put  a  temptation  in  the  way  of  another  person  to  commit 
a  wrongful  act,  by  which  the  tenant  was  injured;  and  yet  the  land- 
lord's negligence  was  in  no  legal  sense  a  cause  of  the  injury."^ 

Negligent  repairs  by  tenant  do  not  render  the  landlord  liable  to 
stranger.  Where  a  lessee  has  undertaken  to  make  the  repairs  on  the 
leased  premises,  his  landlord  is  not  responsible  for  his  negligence  in 
making  them,  which  causes  damage  to  an  adjoining  owner.  More- 
over, by  agreeing  to  allow  the  tenant  a  certain  sum  for  such  repairs, 
the  landlord  does  not  make  himself  responsible  for  the  prudence  and 

"» Alexander   v.   Rhodes,    104    Ga.  "'Callahan  v.  Loughran,  102  Cal. 

807,  30  S.  E.  968.  476,  36  Pac.  835. 

"'  Lamparter  v.  Wallbaum,  45  111.  "'  Andrews  v.  Klnsel,  114  Ga.  390, 

444.  40  S.  E.  300. 


CSS     LIABILITY  IMPOSED  BY  LESSOR'S  AGREEMENT  TO  REPAIR.      [§    597 

care  of  the  tenant,  there  being  no  evidence  that  the  landlord  made  the 
tenant  his  agent  or  servant  in  making  the  repairs. 


160 


§  597.     Repairs  effected  through  agent  or  independent  contractor. 

The  well-settled  rule  of  the  law  of  agency  is  that  where  a  person  con- 
tracts with  another  exercising  an  independent  calling  to  do  a  work 
for  him  according  to  the  contractor's  own  methods  and  not  subject 
to  his  control  or  orders  except  as  to  the  results  to  be  obtained,  the  for- 
mer is  not  liable  for  the  wrongful  acts  of  such  contractor  or  his  ser- 
vants. This  rule  was  applied  by  the  Supreme  Court  of  Missouri  to  a 
case  where  a  landlord  employed  an  independent  contractor  to  con- 
struct a  new  privy  on  leased  premises,  rendered  necessary  by  the 
action  of  the  city  government  in  declaring  the  old  privy  a  nuisance. 
The  accident  occurred  through  the  negligence  of  the  contractors  in 
allowing  the  vault  to  remain  without  a  barrier  for  an  unreasonable 
time;  but  the  landlord  was  not  liable.^^^  Again,  in  the  same  juris- 
diction, it  was  held  that  the  landlord  was  not  liable  for  the  negligence 
of  an  independent  contractor,  employed  to  repair  plumbing  in  tlie 
leased  premises,  in  leaving  a  trap  door  open,  as  a  result  of  which  the 
tenant  fell  into  the  cellar  and  was  severely  injured.^^^ 

On  the  other  hand  it  has  been  held  that  the  doctrine  of  freedom 
from  liability  for  the  negligence  of  an  independent  contractor  does 
not  apply  where  a  landlord  is  making  repairs  or  alterations  on  rented 
premises.^*'^  The  landlord's  license  to  make  the  improvements  in- 
volved an  undertaking  on  his  part  that  the  work,  if  done,  should  be 
performed  in  such  manner  as  to  cause  no  unnecessary  damage."" 
In  one  case  a  new  roof  was  put  on  a  leased  building  at  the  request  of 
the  tenants.  Independent  contractors,  who  were  doing  the  job,  tore 
off  the  old  roof  during  threatening  weather  and  the  goods  of  the  ten- 
ant were  injured  by  rain.  In  holding  the  landlord  liable  the  court 
said:  "By  entering  upon  the  performance  of  the  work,  though 
through  the  medium  of  third  parties,  the  landlord  assumed  and  owed 
the  tenant  a  particular  duty  in  the  premises,  namely,  that  reasonable 

i«»  Murray    v.    Richards,    1    Allen  97  Wis.  577,  72  N.  W.  741,  73  N.  W. 

(Mass.)  414.  559;    Wertheimer    v.    Saunders,    95 

"'Wiese  v.  Remme,  140  Mo.   289,  Wis.  573,  70  N.  W.  824;   Robbins  v. 

41   S.   W.   797.     To   same   effect  see  Atkins,  168  Mass.  45,  46  N.  E.  425; 

Meany  v.  Abbott,  6  Phila.  (Pa.)  256.  Lindsey  v.  Leighton,  150  Mass.  285, 

"^  Burns  v.  McDonald,  57  Mo.  App.  22  N.  E.  901;    Glickauf  v.  Maurer, 

599.  75  111.  289. 

'""  Jefferson  v.  Jameson  &c.  Co.,  60        '"  Jefferson  v.  Jameson  &c.  Co.,  60 

111.  App.  587;  Wilber  v.  Follansbee,  111.  App.  587. 


If 


§    598]  RIGHTS    AND    LIABILITIES    OF    THE    PARTIES.  684 

care  and  caution  should  be  used  in  conducting  the  work  of  taking  off 
the  old  roof  and  putting  on  the  new  one  to  avoid  doing  any  injury  to 
the  property  of  the  tenant.  This  was  an  absolute  duty  imposed  by 
law,  upon  the  particular  facts,  and  was  just  as  binding  as  if  the  de- 
fendants had  stipulated  in  the  lease  for  its  performance.  The  work  to 
be  done  was  one  attended  with  risk  and  danger  to  the  property  of  the 
tenant  by  reason  of  its  exposure  to  the  elements.  That  one  upon 
whom  the  law  devolves  a  duty  cannot  shift  it  over  upon  another,  so 
as  to  exonerate  himself  from  the  consequences  of  its  non-performance, 
is  very  clear."^®^ 

§  598.     Non-performance  of  landlord's  voluntary  promise  to  repair. 

As  long  as  the  landlord  refrains  from  making  voluntary  repairs,  no 
liability  attaches  by  reason  of  his  promise  to  make  them.  This  rule 
has  been  applied  in  a  case  where  a  landlord  failed  to  perform  a  vol- 
untary promise  to  rebuild  fences,  and  crops  were  damaged  in  conse- 
quence.^®^ It  has  also  been  applied  in  a  case  where  personal  injuries 
to  an  employe  of  the  tenant  were  caused  by  a  defective  tank.^®'^  In  ex- 
plaining the  decision  in  the  latter  case  the  court  said :  "The  promise 
was  merely  gratuitous,  not  made  at  the  time  of  the  lease,  and  was  no 
part  of  the  original  contract;  it  was  without  consideration  and  could 
not  be  enforced."  So  a  tenant  himself  could  not  recover  for  a  personal 
injury  caused  by  a  defect  in  a  common  stairway  which  existed  at  the 
time  of  leasing,  even  though  when  notified  of  its  existence  the  land- 
lord promised  to  repair  it  but  failed  to  do  so.^®^ 

The  contributory  negligence  of  a  tenant  in  walking  down  an  aban- 
doned stairway,  which  he  knew  to  be  "rickety  and  rotten,"  would  bar 
his  recovery  for  injuries  caused  by  the  breaking  of  the  stairs,  even 
though  the  landlord  had  been  notified  of  the  defect  and  had  promised 
to  repair  it.^®"  But  a  promise  to  repair  on  the  part  of  the  landlord 
might  operate  to  relieve  the  tenant  from  the  charge  of  contributory 
negligence  if  he  had  a  right  to  assume  the  repairs  had  been  made. 
Such  was  the  case  where  a  tenant  continued  his  daily  use  of  a  defec- 
tive passageway  in  a  tenement  house,  relying  on  the  landlord's  prom- 
ise to  repair  it.^^° 


^"^  Wertheimer     v.     Saunders,     95 

"«  Bowling 

V.   Nuebling,   97    Wis. 

"Wis.    573,    70    N.    W.    824,    per    Pin- 

350,  72  N.  W. 

871. 

ney,  J. 

'"''  Toun    V. 

Armstrong,    75    Mich. 

"'Proctor    v.    Keith,    12    B.    Mon. 

580,  42  N.  W. 

983. 

(Ky.)  252. 

""Bold    V. 

O'Brien,   12    Daly    (N. 

'"Perez   v.   Rabaud,   76   Tex.   191, 

Y.)   160. 

13  S.  W.  177. 

■* 


685  LIABILITY    FOR   NUISANCE.  [§    599 

An  essentially  different  doctrine  was  announced  where  a  landlord 
promised  to  repair  the  flooring  of  a  stall  which  had  been  rented  for 
the  use  of  a  horse.  The  court  held  that  the  lessee  of  the  stall  had  a 
right  to  rely  on  the  promise  of  the  lessor  that  the  flooring  would  be 
repaired  and  to  allow  his  horse  to  remain.  For  an  accident  to  the 
horse  in  consequence  of  the  lessor's  failure  to  perform  his  promise  the 
lessee  was  allowed  to  recover.  It  is  worthy  of  notice,  however,  that 
one  judge  dissented  from  this  result  and  thought  the  tenant  was  with- 
out remedy.^'^^ 

III.    Liability  for  Nuisance. 

§  599.  The  occupier  and  not  the  owner  is  bound  as  between  him- 
self and  the  public  to  keep  buildings  and  other  structures  abutting  on 
the  highway  and  street  in  repair  so  that  it  may  be  safe  for  the  use 
of  travellers  passing  along  the  same;  and  the  occupier  is  prima  facie 
liable  to  parties  injured  through  any  defect  in  the  same  or  want  of 
care  in  the  use  of  such  buildings.^'-  By  occupier  in  this  statement  is 
meant,  not  merely  the  person  who  physically  occupies  the  building, 
but  the  person  who  occupies  it  as  a  tenant  having  the  control  of  it, 
and  being,  as  to  the  public,  under  the  duty  of  keeping  it  in  repair.^" 
The  general  rule  is  that  the  landlord  is  not  liable  to  strangers  for 
injuries  caused  by  a  defect  or  want  of  repair  in  the  premises,  unless 
he  has  agreed  to  make  repairs,  or  the  defect  or  want  of  repair  existed 
at  the  time  of  letting  and  was  of  such  a  character  as  to  constitute  a 
nuisance  or  make  the  premises  permanently  dangerous.^^*  The  prin- 
ciple underlying  this  general  rule  is  that  the  landlord  is  liable  for 
injuries  resulting  from  his  own  negligence  and  not  for  those  result- 
ing from  that  of  his  tenant.^ ^^  If  the  landlord  leases  premises  to  an- 
other in  good  and  safe  condition,  he  is  not  liable  for  any  injury  which 
may  result  by  reason  of  the  negligence  of  the  tenant  in  using  them."*' 

1"  Johnson  v.  Dixon,  1   Daly    (N.  v.  Bickmore,  L.  R.  8  C.  P.  401;  Nel- 

Y.)   178.  son  v.  Liverpool  &c.  Co.,  L.  R.  2  C. 

"=Lee  v.  McLaughlin,  86  Me.  410,  P.   D.   311;    Gandy   v.   Jubber,   5   B. 

30  Atl.  65.  &  S.  78;  Todd  v.  Flight,  9  C.  B.  (N. 

™  Cunningham  v.  Cambridge  Sav.  S.)    377,  99  E.  C.  L.  377;   Deller  v. 

Bank,  138  Mass.  480.  Hofferberth,  127  Ind.  414,  26  N.  E. 

"^Frischberg  v.  Hurler,  173  Mass.  889;  Rider  v.  Clark,  132  Cal.  382,  64 

22,  52  N.  E.  1086;  Leonard  v.  Storer,  Pac.  564. 

115  Mass.  86;  Mellen  v.  Morrill,  126         ^"Gordon  v.  Peltzer,  56  Mo.  App. 

Mass.    545;    Caldwell    v.    Slade,    156  599. 

Mass.  84,  30  N.  E.  87;    Gwinnell  v.         ""Texas    Loan    Agency    v.    Flem- 

Eamer,  L.  R.  10  C.  P.   658;    Pretty  ing,  92  Tex.  458,  49  S.  W.  1039. 


§    600]  EIGHTS   AND   LIABILITIES    OF   THE   PARTIES.  68G 

Thus  where  a  stranger  was  injured  by  a  defect  in  the  entrance  to 
leased  premises  which  was  no  part  of  the  sidewalk,  the  landlord  was 
not  liable  in  the  absence  of  a  covenant  to  repair  on  his  part  and  of  any 
proof  that  the  defect  existed  at  the  time  the  premises  were  demised."^ 
(1)  "But  where  the  owner  leased  premises  which  are  a  nuisance 
or  must  in  the  nature  of  things  become  so  by  their  use,  then  whether 
in  or  out  of  possession,  he  is  liable  for  injuries  resulting  from  such 
nuisance.  (2)  Where  the  premises  are  let  for  rent  or  profit,  to  be 
used  for  purposes  for  which  they  are  not  fit  or  safe,  and  all  this  was 
known  or  ought  to  have  been  known  to  the  lessor,  he  is  also  liable  for 
injuries  resulting  from  such  use.  (3)  Where  property  at  the  time  of 
the  demise  is  not  a  nuisance,  and  an  injury  happens  by  some  act  of 
the  tenant  or  while  he  has  entire  possession  and  control  of  the  prem- 
ises, the  owner  is  not  liable."^^®  The  liability  of  an  owner  for  the 
safety  of  premises  depends  on  his  right  to  assert  actual  control  over 
them  and  not  upon  the  state  of  the  technical  legal  title.  The  mere 
fact  that  there  was  a  formal  and  unasserted  right  outstanding  would 
not  prevent  the  landlord's  being  chargeable  to  the  same  extent  as  if 
there  had  been  no  flaw  in  his  right  of  possession. ^'^^ 

§  600.  Injuries  on  abutting  sidewalks. — When  an  accident  hap- 
pens to  a  passer-by  through  a  defect  in  a  sidewalk  in  front  of  leased 
premises,  the  lessor  is  in  general  not  liable  in  damages  in  the  absence 
of  any  covenant  on  his  part  to  keep  the  premises  in  repair.  If  the 
lease  is  silent  as  to  who  should  make  repairs,  it  is  the  duty  of  the 
lessee  to  make  them.^^°  In  a  well  considered  case  before  the  Supreme 
Court  of  Michigan,  the  plaintiff  brought  an  action  to  recover  for 
damages  received  from  falling  into  a  scuttle  or  coal  hole  in  the  side- 
walk in  front  of  the  demised  premises.  The  lessor  was  under  no  cove- 
nant to  repair  and  there  was  no  evidence  that  the  scuttle  was  not 
properly  constructed.  The  landowner  was  held  not  to  be  liable  and 
the  reason  for  the  decision  stated  to  be  because  he  was  not  in  posses- 

"^  Black  V.  Maitland,  11  N.  Y.  App.  ""  Learoyd  v.  Godfrey,  138   Mass. 

Div.  188.  315. 

^"^Henson    v.    Beckwith,    20    R.    I.  ""Gott  v.  Gandy,  22  E.  L.  &  Eq. 

165,  37  Atl.  702,per  Stiness,  J.;  Rose-  173;    Leavitt  v.   Fletcher,    10   Allen 

well  V.  Prior,  2  Salk.  460;  Pretty  v.  (Mass.)    119,  121;    Elliott  v.  Aiken, 

Bickmore,  L.   R.   8  C.   P.   401;    Rex  45  N.  H.  30,  36;   Estep  v.  Estep,  23 

V.  Pedly,  1  A.  &  E.  822;   Nelson  v.  Ind.  114;   City  of  Lowell  v.  Spauld- 

Liverpool  &c.  Co.,  L.  R.  2  C.  P.  D.  ing,  4  Cush.    (Mass.)    277;    Heintze 

311.  V.  Bentley,  34  N.  J.  Eq.  562. 


ii 


C87  LIABILITY   FOR    XUISANCE.  [§    600 

sion.*^^  But  if  the  scuttle  had  been  out  of  repair  when  the  lease  was 
made  the  owners  would  then  have  been  held  liable.^^^  Such  was  not 
the  case  where  the  cover  of  the  coal  hole  was  in  good  repair  and  had 
an  8  attached  by  which  it  could  be  fastened  down.  Landlords  are  not 
obliged  to  see  that  the  covers  on  coal  holes  in  premises  which  are  in 
the  occupation  of  a  tenant  are  kept  securely  fastened.  The  cause  of 
the  accident  was  rather  the  neglect  of  the  tenant  to  fasten  the  cover 
than  the  worn  condition  of  the  hole.^^^  jj^  many  other  cases  of  in- 
juries through  defective  vaults  or  gratings  on  an  abutting  sidewalk  it 
has  been  held  that  the  owner,  being  out  of  possession  and  not  bound 
to  repair,  was  not  liable  in  an  action  for  injuries  received  in  conse- 
quence of  the  neglect  to  repair.^^*  It  is  neither  the  sense  nor  the 
policy  of  the  common  law  to  make  a  landowner  an  insurer  of  the 
good  repair  of  premises  and  liable  for  all  injuries  irrespective  of  neg- 
ligence. 

An  attempt  was  once  made  to  hold  a  landlord  liable  for  injuries 
caused  by  a  coal  hole  on  leased  premises  on  the  ground  that  such  use 
of  the  highway  amounts  to  a  nuisance,  when  constructed  without 
license  or  authority  from  the  public.  The  coal  hole  in  question  had 
been  constructed  prior  to  any  legislation,  state  or  municipal,  relating 
to  vaults  under  sidewalks  or  to  coal  holes.  But  the  court  were  of 
opinion  that  the  want  of  special  license  or  authority  to  construct  or 
maintain  the  coal  hole  did  not  constitute  it  a  nuisance.^^^  The  abut- 
ting owner  may  use  the  highway  in  front  of  his  premises  when  not 
restricted  by  positive  enactment  for  loading  and  unloading  goods, 
for  vaults  and  shutes,  for  shade  trees,  etc.,  and  only  on  condition  that 
he  does  not  unreasonably  interfere  with  the  safety  of  the  highway 
for  public  travel.^®^  In  another  case  it  was  contended  that  until  the 
abutting  owner  had  secured  a  legislative  permit  it  was  unlawful  to 

^'1  Fisher  v.  Thirkell,  21  Mich.  1,  ""  Frischberg  v.  Hurter,  173  Mass. 

4  Am.  R.  422.     To   same  effect  see  22,  52  N.  E.  1086. 

Stewart  v.  Putnam,  127  Mass.  403;  ^**  Payne  v.  Rogers,  2  H.  Bl.  350; 

East  End  Imp.  Co.  v.  Sipp,  14  Ky.  Cheetham  v.   Hampson,  4  Term  R. 

L.  R.  924;  Gordon  v.  Peltzer,  56  Mo.  318;  Bears  v.  Ambler,  9  Pa.  St.  193; 

App.  599;  Adams  v.  Fletcher,  17  R.  City  of  Lowell  v.  Spaulding,  4  Cush. 

I.  137,  20  Atl.  263;  Bears  v.  Ambler,  (Mass.)  277;  Owings  v.  Jones,  9  Md. 

9  Pa.  St.  193.     A  contrary  result  is  108. 

reached  in  Georgia  by  virtue  of  a  '*'  Adams  v.  Fletcher,  17  R.  I.  137, 

statute.     Collier  v.   Hyatt,   110   Ga.  20  Atl.  263. 

317,  35  S.  E.  271.  ""  Weller  v.  McCormick,  52  N.  J. 

"'  Stoetzele  v.  Swearingen,  90  Mo.  L.  470,  19  Atl.  1101. 
App.    588;     Dalay    v.    Savage,    145 
Mass.  38,  12  N.  E.  841. 


§    601]  EIGHTS    AXD   LIABILITIES    OF    THE    PARTIES.  GS8 

excavate  under  the  sidewalk  and  place  there  a  coal  hole,  even  though 
it  may  be  done  in  a  careful  manner  and  left  reasonably  safe  for  pass- 
ing pedestrians.  Under  the  city  charter  as  it  existed  at  the  time  the 
vault  was  constructed  power  was  given  the  common  council  by  ordi- 
nance "to  have  exclusive  control  and  power  over  the  streets,  sidewalks 
and  highways  of  the  city  .  .  .  and  to  regulate  the  building  of 
vaults  under  sidewalks."  The  city  had  not  exercised  this  power  and 
had  not  by  ordinance  provided  any  rules  or  regulations  for  building 
vaults,  and  it  was  argued  that  the  construction  of  the  vault  was  with- 
out lawful  authority  and  its  erection  a  nuisance.  But  the  court 
thought  the  better  doctrine  to  be  "that  the  want  of  a  special  license  or 
authority  to  construct  and  maintaiil  the  coal  hole  in  question  did  not 
constitute  it  a  nuisance."^^^ 

If  in  addition  to  the  fact  that  an  injury  is  caused  by  a  defect  in 
the  original  construction  of  a  building,  the  owner  has  general  super- 
vision over  the  leased  premises,  he  will  of  course  be  liable.  The  ground 
floor  of  a  building  which  was  leased  for  a  store  had  an  unprotected 
area-way  in  front  of  it  abutting  on  the  sidewalk.  It  was  held  that 
the  landlord  was  liable  to  a  traveler  along  the  highway  who  was  in- 
jured by  falling  into  the  area-way.^^^ 

§'  601.  Injuries  from  falling  articles. — Where  a  part  of  a  leased 
building  becomes  detached  and  falls  on  a  passerby,  the  general  rule  is 
that  the  landlord  is  not  liable  unless  the  defect  causing  the  accident 
existed  at  the  time  of  the  demise.  After  five  years'  occupation  by  a 
tenant  under  a  lease  putting  no  obligation  on  the  landlord  to  repair, 
a  cap-stone  blew  oS  the  demised  premises  and  suit  was  brought 
against  the  landlord  for  the  damage  caused  thereby.  The  court  de- 
cided the  landlord  was  not  liable.  The  event  showed  that  at  the  date 
of  the  lease  there  was  no  immediate  danger,  as  the  accident  did  not 
happen  till  more  than  three  years  later.  Even  if  inspection  would 
have  disclosed  that  the  cap-stone  would  crumble  in  the  course  of  five 
years,  it  would  be  going  too  far  to  say  that  the  covenant  of  the  tenant 
to  repair  did  not  reach  it.  It  would  be  going  still  further  to  say  that 
the  landlord  must  be  taken  to  have  contemplated  the  event,  or  that  the 
tenants  having  full  control,  and,  as  the  plaintiff  asserts,  the  right  and 
duty  as  towards  the  public  to  do  what  was  necessary  to  make  the  place 

^"Gordon  v.  Peltzer,  56  Mo.  App.  see  Stoetzele  v.  Swearingen,  90  Mo. 
599,  citing  Adams  v.  Fletcher,  17  R.     App.  588. 

I.  137,  20  Atl.  263.     To  same  effect        ^^^  Larue  v.  Farren  Hotel  Co.,  116 

Mass.  67. 


689  LIABILITY    FOR   NUISANCE.  [§    &02 

safe,  were  not  the  only  responsible  parties.^®^  In  another  case  the 
plaintiff  was  injured  by  the  fall  of  a  window  blind  from  a  part  of  the 
defendant's  building,  which  had  been  let  to  a  tenant.  The  judge  found 
as  a  fact  that  at  the  time  of  the  accident  the  blind  was  in  the  ex- 
clusive use  and  control  of  the  tenant.  The  defendant  was  held  not 
liable  in  the  absence  of  evidence  to  control  the  presumption  of  law 
that  it  was  the  duty  of  the  tenant  to  keep  the  premises  safe  for  per- 
sons passing  or  standing  on  the  sidewalk  below.^^" 

An  increased  liability  may  be  placed  on  the  landlord  by  statute  or 
city  ordinance.  An  ordinance  in  the  city  of  San  Francisco  prohibited 
the  construction  of  awnings  in  front  of  buildings  over  the  public 
streets  except  upon  the  condition  that  the  awning  should  be  securely 
placed  and  supported.  Under  this  enactment  the  owner  of  a  building 
who  erects  such  an  awning,  or  suffers  one  to  be  erected  by  a  tenant,  as- 
sumes an  obligation  to  the  public  to  keep  it  well  secured,  and  is  liable 
to  a  party  who  suffers  an  injury  from  a  falling  of  the  awning,  owing 
to  a  defect  in  its  supports,  although  at  the  time  of  the  injury  the 
building  was  occupied  by  a  tenant  under  a  lease.  Where  one  has  se- 
cured a  privilege  from  the  public  on  a  condition,  he  cannot,  after 
availing  himself  of  the  privilege,  avoid  his  obligation  to  perform  the 
condition  by  leasing  the  premises.  ^^^  The  tenant  himself  is  not,  how- 
ever, in  a  position  to  take  advantage  of  such  an  ordinance,  after  suf- 
fering injury  from  a  defective  awning.  Where  it  did  not  appear  that 
the  defects  existed  at  the  time  of  the  demise,  and  the  lease  contained 
no  covenants  on  the  part  of  the  landlord  to  repair,  the  tenant  could  not 
recover,  even  though  a  city  ordinance  made  it  the  duty  of  the  land- 
lord to  make  such  repairs  as  were  necessary  for  the  safety  of  travel- 
lers.i«2 

§  602.  Snow  and  ice. — The  general  doctrine  seems  to  be  that  a 
traveller  along  a  highway  who  has  been  injured  by  snow  and  ice  fall- 
ing from  a  building  abutting  on  the  highway  has  a  right  of  action  to 
recover  for  his  injuries.  Statutes  provide  the  duites  of  towns  in  re- 
gard to  highways  and  make  them  liable  if  they  fail  to  perform  their 
duty.   But  individuals  are  also  liable  for  any  injuries  they  may  cause 

^"•Munroe   v.   Carlisle,   176    Mass.  (Mass.)   17,  21;  Clifford  v.  Atlantic 

199,  57  N.  E.  332.  Cotton  Mills,  146  Mass.  47,  15  N.  E. 

""Szathmary  v.  Adams,  166  Mass.  84. 

145,  44  N.  E.  124;  Kirby  v.  Boylston  "^  Jessen  v.  Sweigert,  66  Cal.  182, 

&c.    Asso.,    14    Gray    (Mass.)     249;  4  Pac.  1188. 

Milford      v.      Holbrook,      9      Allen  "*  Kahn  v.  Love,  3  Ore.  206. 

Jones  L.  &  T.— 44 


§'  602]  EIGHTS   AND  LIABILITIES   OF   THE   PAP.TIES.  690 

by  interfering  with  the  safety  and  convenience  of  travellers.  It  can- 
not be  doubted  that  the  proprietor  of  land  adjoining  a  highway  may 
erect  upon  it  a  structure  that  will  catch  the  falling  rain  and  snow, 
and  retain  it  till  it  becomes  a  large  mass,  and  allow  it  to  freeze  and 
thaw.  But  the  question  here  is,  whether  he  may  construct  his  roof  in 
such  a  manner  that  after  the  mass  has  accumulated  it  will,  in  cer- 
tain states  of  the  weather,  be  projected  by  its  own  weight  upon  the 
sidewalk.  If  he  may,  then  the  risk  is  on  travellers,  and  they  must  take 
notice  that,  at  certain  seasons,  the  sidewalks  are  not  safe  and  con- 
venient for  travel,  but  must  be  avoided.^®^  But  this  obligation  depends 
on  possession  and  control  more  than  on  ownership,  the  limited  extent 
of  the  landlord's  liability  being  shown  by  a  case  where  a  traveller 
along  a  highway  was  injured  by  falling  snow  and  ice  from  a  building 
which  had  been  leased  for  a  long  term.  By  the  terms  of  the  lease  the 
lessee  had  bound  himself  to  make  all  needful  and  necessary  repairs, 
both  internal  and  external,  on  the  demised  premises,  and  so  the  owner 
was  not  liable  for  the  fall  of  ice,  because  the  lessee  was  the  occupant 
of  the  entire  estate,  and,  as  between  himself  and  the  public,  was  bound 
to  keep  the  building  in  such  a  state  of  repair  that  the  adjoining  high- 
ways should  be  safe  for  the  use  of  travellers  thereon.  The  control 
of  the  tenant  included  the  roof  of  the  building  as  well  as  the  interior, 
and  he  might  have  cleared  the  roof  by  the  exercise  of  due  care.^'* 
Furthermore,  the  leased  house  was  not  a  nuisance  in  itself  for  which 
an  indictment  would  lie.  As  Judge  Holmes  aptly  remarked:  "If  it 
was,  half  the  householders  in  Boston  are  indictable  at  the  present  mo- 
ment." The  house  would  become  a  nuisance  at  times  by  the  mere 
working  of  nature  unless  the  tenant  cleared  the  roof,  but  the  tenant 
could  have  prevented  this  by  the  use  of  reasonable  care.  "In  such 
cases  it  cannot  matter  whether  the  wrong  on  the  part  of  the  tenant  is 
an  act  which  makes  the  premises  a  nuisance,  or  an  omission  which 
allows  them  to  become  one.  It  is  as  much  his  duty  to  act  in  the  latter 
case  as  it  is  to  abstain  in  the  former.  In  either,  as  against  the  public, 
the  landlord,  unless  he  has  assumed  the  duty  himself  by  covenant, 
has  a  right  to  rely  upon  the  tenant's  managing  the  premises  in  his 
occupation  in  such  a  way  as  to  prevent  their  being  a  nuisance."^®^ 

"^  Shipley  v.  Fifty  Associates,  101  ''^  Clifford  v.  Atlantic  Cotton  Mills, 

Mass.    251;    Lee   v.   McLaughlin,   86  146    Mass.    47,    15    N.    E.    84,    per 

Me.  410,  30  Atl.  65.  Holmes,  J.;    Lee  v.  McLaughlin,  86 

^^^  Leonard  v.  Storer,  115  Mass.  86;  Me.  410,  30  Atl.  65. 
Lee  v.  McLaughlin,  86  Me.  410,  30 
Atl.  65. 


691  LIABILITY    FOR    NUISANCE,  [§    603 

In  a  case  where  a  building  was  leased  to  many  tenants,  the  lessors 
having  general  supervision  over  the  whole  and  entire  control  of  the 
outside  doors  and  passageways,  so  far  as  was  necessary  for  the  making 
of  repairs,  and  being  under  obligation  to  make  repairs,  they  were  lia- 
ble for  injuries  caused  by  falling  snow  and  ice  which  had  collected  on 
the  roof.  Under  such  circumstances  it  was  the  lessor's  duty  to  keep 
the  roof  free  from  snow  and  ice.^^^  So,  a  lease  "of  all  chamber  stories" 
to  one  tenant,  the  ground  floor  and  celler  being  let  to  another,  was  held 
to  convey  no  right  to  use  or  control  the  outside  of  the  roof.  These 
leases  did  not  relieve  the  lessor  from  his  duty  as  owner  to  remove  what- 
ever substances  might  gather  on  the  roof  and  become  a  nuisance  to 
travelers  on  the  highway.^'*'^ 

§  603.  Landlord  and  tenant  both  responsible. — Where  there  has 
been  a  nuisance  of  continued  existence  upon  demised  premises,  the  les- 
sor and  the  lessee  may  both  be  liable  for  the  damages  resulting  there- 
from,— the  lessee  in  the  actual  occupation  of  the  premises,  if  he  con- 
tinues the  nuisance  after  notice  of  its  existence  and  request  to  abate 
it ;  and  the  lessor,  if  he  at  first  created  it  and  then  demised  the  prem- 
ises with  the  nuisance  upon  them,  and  at  the  time  of  the  damage  re- 
sulting therefrom  is  receiving  a  benefit  therefrom  by  way  of  rent  or 
otherwise.  ^^*  If  the  wrong  causing  the  damage  arises  from  the  non- 
feasance or  the  misfeasance  of  the  lessor,  the  party  sufi'ering  damage 
may  sue  him.  Thus  the  owner  of  premises  who  lets  them  to  a  tenant 
in  a  dangerous  condition,  and  who  permits  them  to  remain  so  until, 
by  reason  of  want  of  reparation,  they  fall  upon  and  injure  the  house 
of  an  adjoining  owner,  is  liable  to  an  action.^^''  Virgin,  J,,  speaking 
for  the  Maine  Court,  said:  "It  is  settled  law  that  where  the  owner 
lets  premises  which  are  in  a  condition  which  is  unsafe  for  the  avowed 

"°Kirby  v.  Boylston  &c.  Asso.,  14  J.  L.   457;    Samuelson  v.  Cleveland 

Gray  (Mass.)  249.  &c.  Co.,  49  Mich.  164,  73  N.  W.  499; 

'"  Shipley  v.  Fifty  Associates,  101  Buesching  v.  St.  Louis  &c.  Co.,  73 

Mass.  251,  s.  c.  106  Mass.  194.  Mo.  219,  39  Am.  R.  503;   Nugent  v. 

"'  Swords  V.  Edgar,   59  N.  Y.  28,  Boston  &c.  R.  Co.,  80  Me.  62,  12  Atl. 

17  Am.  R.  295;   Staple  v.  Spring,  10  797;    Joyce  v.  Martin,  15  R.  I.  558, 

Mass.  72;  Rosewell  v.  Prior,  2  Salk.  10   Atl.   620,    Padberg  v.   Kennerly, 

460,12  Mod.  635;  Rich  v.  Basterfield,  16  Mo.  App.  556;    Griffith  v.  Lewis, 

4  M.  G.  &  S.  783,  56  E.  C.  L.  783;  17  Mo.  App.  605;  Fleischner  v.  Citi- 

Irvine   v.   Wood,   51   N.   Y.   224,   10  zens'  Inv.  Co.,  25  Ore.  119,  35  Pac. 

Am.  R.  603;   Pillsbury  v.  Moore,  44  174. 

Me.  154,  69  Am.  Dec.  91;  McDonough         ^"^  Todd  v.  Flight,  9  C,  B.   (N.  S.) 

v.  Gilman,  3  Allen  (Mass.")  264;  Mor-  377,  99  E.  C.  L.  377. 
ris  Canal  &c.  Co.  v.  Ryerson,  27  N. 


§    604]  RIGHTS    AXD   LIABILITIES    OF    THE    PARTIES.  G92 

purpose  for  which  they  are  let,  or  with  a  nuisance  upon  them  w]ien 
let,  and  receives  rent  therefor,  he  is  liable  whether  in  or  out  of  pos- 
session, for  the  injuries  which  result  from  their  state  of  insecurity  to 
persons  lawfully  upon  them;  for  by  the  letting  for  profit  he  author- 
ized a  continuance  of  the  condition  they  were  in  when  he  let  them, 
and  is,  therefore,  guilty  of  misfeasance."^*"' 

If  it  be  urged  that  an  absolute  deed  would  put  an  end  to  the  former 
owner's  liability  and  that  a  lease  is  pro  tanto  as  effectual  as  a  deed, 
inasmuch  as  for  a  space  it  prevents  the  lessor  from  entering  on  the 
premises  to  make  repairs,  this  leaves  out  of  view  that,  by  a  lease  re- 
serving rent,  the  owner  and  lessor  derives  a  profit  from  the  continu- 
ance of  the  nuisance.  The  putting  it  out  of  one's  power  to  abate  a 
nuisance  is  as  great  a  tort  as  not  to  abate  it  when  it  is  in  your  power 
to  do  it.^°^  So,  where  a  lease  contemplated  the  continuance  of  a 
nuisance  already  in  existence,  the  landlord's  fault  would  be  plain,  and 
there  would  be  no  doubt  as  to  hi?  liability.^''^  In  such  a  case  both 
landlord  and  tenant  would  be  liable.^*'^ 

§  604.  Necessity  for  request  to  abate  nuisance. — The  rule  that  any 
person  injured  by  a  continuing  nuisance  can  maintain  an  action 
against  the  landowner  who  created  it,  or  against  a  grantee  who  con- 
tinues it,  is  subject  to  the  provision  that  the  grantee,  if  he  merely 
suffers  it  to  remain,  must  first  be  asked  to  abate  it.^"*  One  of  the 
earliest,  if  not  the  earliest  case  in  which  this  rule  was  announced,  is 
PennruddocVs  Case,^^^  where  it  was  resolved  that  an  action  lies 
against  one  who  erects  a  nuisance  without  any  request  made  to  abate 
it,  but  not  against  the  feoffee  unless  he  does  not  remove  the  nuisance 
after  request.     On  this  point  Chief  Justice  Hornblower  said:     "The 

='*  Nugent  v.  Boston  &c.  R.  Co.,  80        ""^  Prentiss  v.  Wood,  132  Mass.  486; 

Me.  62,  77,  12  Atl.  797.  Plerson  v.  Glean,  14  N.  J.  L.  36,  25 

""^Rosewell  v.  Prior,  2  Salk.  460,  Am.   Dec.   497;    Woodman  v.   Tufts, 

12  Mod.   635;    Swords  v.  Edgar,   59  9  N.  H.  88;  Plumer  v.  Harper,  3  N. 

N.  Y.  28,  17  Am.  R.  295.  H.  88,  15  Am.  Dec.  333;  Carleton  v. 

="=  Samuelson    v.    Cleveland    Iron  Redington,  21  N.  H.   291;    Johnson 

Co.,    49    Mich.    164,    13    N.   W.    499;  v.  Lewis,  13  Conn.  303,  33  Am.  Dec. 

Smith  r.  Elliott,  9  Pa.  St.  345;  Hel-  405;    Noyes   v.    Stillman,    24    Conn, 

wig  v.  Jordan,   53   Ind.   21,   21  Am.  15;   Pillsbury  v.  Moore,  44  Me.  154, 

R.  189;   Grady  v.  Wolsner,  46  Ala.  69  Am.  Dec.  91;  Ahern  v.  Steele,  115 

381,  7  Am.  R.  593.  N.   Y.   203,   22   N.  E.   193;    Hubbard 

=^  Samuelson  V.  Cleveland  &c.  Co.,  v.   Russell,   24   Barb.    (N.   Y.)    404; 

49  Mich.  164,  13  N.  W.  499;    Irvine  Wenzlick  v.  McCotter,  87  N.  Y.  122, 

V.  Wood,  51  N.  Y.  224,  10   Am.  R.  41  Am.  R.  358. 
603.  '"'°  5  Coke  100b. 


693  LIABILITY    FOR    XUISAXCE.  [§'   604 

law,  as  settled  in  Pennruddock's  Case,  has  never,  I  believe,  been  seri- 
ously questioned."-*'®  The  doctrine  of  the  cases  is  that  he  who  erects 
a  nuisance  does  not,  by  conveying  the  land  to  another,  transfer  the  lia- 
bility for  the  erection  to  the  grantee;  and  the  grantee  is  not  liable 
until,  upon  request,  he  refuses  to  remove  the  nuisance.^'^'^  Before  an 
action  can  be  maintained  against  a  person  coming  into  possession  of 
property  on  which  there  is  a  nuisance,  there  must  be  a  request  upon 
him  to  abate  it.^"^ 

This  principle  in  regard  to  the  liability  for  nuisances  has  a  twofold 
application  to  the  law  of  landlord  and  tenant.  One  result  is  that  a 
lessee  who  takes  possession  of  premises  upon  which  there  is  an  exist- 
ing nuisance  is  not  liable  for  its  continuance  except  upon  failure  to 
comply  with  a  request  to  remove  it.-"^  In  those  cases  "in  which  the 
nuisance  exists  at  the  time  of  the  creation  of  the  estate  for  years  and 
the  lessee  does  nothing  except  maintain  the  demised  premises  in  the 
condition  in  which  he  received  them,  the  person  who  suffers  from  the 
nuisance  must  look  to  the  landlord  and  not  to  the  tenant  for  redress.^ ^•* 
The  second  result  is  that  he  who  creates  a  nuisance  on  his  own  prem- 
ises cannot  escape  liability  for  its  continuance  by  demising  the  prem- 
ises whereon  the  nuisance  is.  Such  liability  will  exist,  although  the 
tenant  stipulates  to  keep  the  premises  in  repair. ^^^  The  lessee  would 
be  liable  for  the  continuance  of  a  nuisance  existing  on  the  demised 
premises  at  the  time  he  acquired  the  estate,  after  he  has  been  notified 
of  its  existence  and  failed  to  abate  it.  Any  notice  is  sufficient  which 
brings  to  the  knowledge  of  the  tenant  the  existence  of  the  nuisance  and 
the  desire  of  the  complainant  to  have  it  removed.^^^ 

Another  result  is  that  a  grantee  of  an  estate  subject  to  an  outstand- 
ing lease  is  not  liable  for  the  continuance  of  a  nuisance  upon  th6 
granted  premises.  The  position  of  the  landlord  in  such  a  case  is 
stronger  than  that  of  an  ordinary  grantee.  The  lessee  who  occupied 
the  premises  was  under  obligation  to  the  public  to  see  that  they  did  not 
become  a  nuisance,  and  ii  was  his  duty  to  respond  for  any  damage 

='«Pierson   v.   Glean,   14   N.    J.   L.  (Mass.)    264;    Beavers  v.  Trimmer, 

36,  25  Am.  Dec.  497.  25  N.  J.  L.  97. 

"""  Eastman  v.  Amoskeag  Mfg.  Co.,  ""  Meyer  v.  Harris,  61  N.  'J.  L.  83, 

44  N.  H.  143,  82  Am.  Dec.  201.  38  Atl.  690. 

=<«  Bonner  v.  Welborn,  7  Ga.  296;  ="  Ingwersen  v.  Rankin,  47  N.  J. 

Western   &c.  R.  Co.  v.   Cox,  93   Ga.  L.  18;   McDonoiigh  v.  Oilman,  3  Al- 

561,   20    S.    E.    68;    Middlebrooks   v.  len   (Mass.)   2CA;   Rosewell  v.  Prior, 

Mayne,  96  Ga.  449,  23  S.  E.  398.  2  Salk.  460,  12  Mod.  635. 

="*  McDonough  v.  Gilman,  3  Allen  ='-' Central  Railroad  v.  English,  73 

Ga.  366. 


605] 


RIGHTS    AND   LIABILITIES    OF   THE   PARTIES. 


694 


sustained  by  any  person  from  the  nuisance.  The  owners  of  the  re- 
version had  the  right,  in  the  absence  of  notice,  to  suppose  that  he  would 
discharge  such  duty  and  protect  the  public,  and  they  were  under  no 
obligation  to  see  by  watchful  diligence  that  he  performed  such  duty.^" 
A  mortgagee  who  purchased  the  mortgaged  premises  under  a  power  of 
sale  and  then  allowed  the  mortgagor  to  continue  in  possession  on  pay- 
ment of  a  certain  rent  does  not  stand  in  the  position  of  a  grantee  sub- 
ject to  an  outstanding  lease.  He  would  be  liable  for  injuries  caused 
by  a  nuisance  existing  at  the  time  of  the  sale.^^*  Where  the  nuisance 
causing  the  injury  consists  of  a  dangerous  place  which  causes  an  acci- 
dent to  the  person  of  a  stranger,  different  considerations  enter  into 
the  case.  A  person  in  control  of  real  estate,  either  as  owner  or  lessee, 
owes  a  duty  to  all  persons  whom  he  invites  on  his  premises  to  have 
them  reasonably  safe  for  use.  He  cannot  escape  from  this  obligation 
by  showing  the  dangerous  condition  existed  at  the  time  he  received 
the  premises.  So  a  grantee  was  held  liable  for  an  accident  caused 
by  an  open  area-way  abutting  on  a  public  sidewalk,  though  he  had  not 
altered  its  construction.^^^  And  a  lessee  was  jointly  liable  with  his 
lessor  for  an  injury  caused  by  a  defect  in  a  public  wharf.^^^ 

§  605.  A  lessor  is  not  liable  for  a  nuisance  created  and  maintained 
on  the  premises  by  the  tenant,^^'  or  for  a  nuisance  which  arises  from 
the  tenant's  neglect  to  make  proper  repairs  while  the  property  is  in 


«^Ahern  v.  Steele,  115  N.  Y.  203, 
22  N.  E.  193 ;  Gandy  v.  Jubber,  5  B. 
&  S.  78,  s.  c.  9  B.  &  S.  15;  Lufkin 
V.  Zane,  157  Mass.  117,  31  N.  E.  757; 
McCarthy  v.  York  Co.  Sav.  Bank,  74 
Me.  315,  24  Atl.  900.  Compare  Ab- 
bott v.  Jackson,  84  Me.  449,  24  Atl. 
900.  It  was  said  in  Rex  v.  Pedly, 
1  A.  &  E.  822,  827:  "If  a  nuisance 
be  created  and  a  man  purchase  the 
premises  with  the  nuisance  upon 
them,  though  there  be  a  demise  for 
a  term  at  the  time  of  the  purchase, 
so  that  the  purchaser  has  no  oppor- 
tunity of  removing  the  nuisance,  yet 
by  purchasing  the  reversion  he 
makes  himself  liable  for  the  nui- 
sance," But  this  seems  inconsistent 
with  the  opinion  written  by  the 
court  of  the  Exchequer  Chamber  in 
Gandy  v.  Jubber,  9  B.  &  S.  15,  and 


the  statement  has  often  been  doubt- 
ed or  denied. 

^*  Dalay  v.  Savage,  145  Mass.  38, 
12  N.  E.  841. 

-"'^Condon  v.  Sprigg,  78  Md.  330, 
28  Atl.  395,  citing  Coupland  v.  Hard- 
ingham,  3  Camp.  398;  Fisher  v. 
Prowse,  2  B.  &  S.  770. 

^^^  Joyce  V.  Martin,  15  R.  I.  558, 
10  Atl.  620. 

="'Vason  V.  City  of  Augusta,  38 
Ga.  542;  Grogan  v.  Broadway  &c. 
Co.,  87  Mo.  321,  14  Nev.  App.  588; 
Lufkin  V.  Zane,  157  Mass.  117,  31 
N.  E.  757;  Baker  v.  Allen,  66  Ark. 
271,  50  S.  W.  511;  Fleichner  v.  Citi- 
zens' Inv.  Co.,  25  Ore.  119,  35  Pac. 
174;  Wunder  v.  McLean,  134  Pa.  St. 
334,  19  Atl.  749;  Riley  v.  Simpson, 
83  Cal.  217,  23  Pac.  293. 


G95  LIABILITY   FOR   NUISAXCE.  [§    606 

the  control  of  the  tenant.^^"^  Moreover,  as  between  landlord  and  ten- 
ant, the  party  presumptively  responsible  for  a  nuisance  upon  the  leased 
premises  is  the  tenant.^ ^^  During  the  life  of  the  lease,  the  lessors  are 
not  owners,  and  inasmuch  as  the  nuisance  is  neither  created  nor  main- 
tained by  them,  there  is  no  principle  of  law  upon  which  an  action  can 
be  maintained  against  them.^^*'  If  the  premises  are  a  nuisance,  not 
in  themselves  but  in  consequence  of  the  use  made  of  them  by  the  ten- 
ant, then  the  question  is  whether  this  use  is  authorized  by  the  land- 
lord. If  the  premises  can  be  used  by  the  tenant  in  the  manner  in- 
tended by  the  landlord,  either  as  shown  by  the  construction  of  the 
premises  or  by  the  terms  of  the  lease,  or  by  other  evidence,  without 
becoming  a  nuisance,  the  landlord  is  not  liable  for  the  acts  or  neglect 
of  the  tenant  which  creates  the  nuisance.  If  the  tenant  creates  the 
nuisance  without  authority  of  the  landlord,  and  after  he  has  entered 
into  occupation  as  tenant,  the  landlord  is  not  liable.^-^ 

Even  in  case  of  injury  from  a  private  nuisance,  the  landlord  will 
not  be  liable,  where  the  tenant  had  exclusive  possession  of  the  prem- 
ises, and  where  the  nuisance  was  created  by  the  tenant. ^-^  For  a 
nuisance  to  a  dwelling  on  adjoining  property  arising  from  a  cesspool 
on  the  demised  premises,  the  landlord  will  be  responsible  in  damages 
when  the  leakage  was  caused  by  its  improper  construction  or  by  a  de- 
fective condition  in  existence  at  the  time  the  tenant  took  possession. 
But  if  the  cesspool  was  properly  constructed  and  was  in  repair  when 
the  tenant  took  possession  and  leakage  was  due  to  subsequent  neglect 
of  tenant  to  repair,  the  landlord  will  not  be  liable.^^^ 

§  606.  Moreover,  a  landlord  is  not  liable  for  injuries  resulting 
from  an  improper  use  of  the  demised  premises  by  the  tenant.     The 

fall  of  an  awning  constructed  solely  as  a  protection  against  the  sun 
and  rain  was  occasioned  by  the  negligent  and  improper  conduct  of  the 
tenant  in  permitting  it  to  be  used  as  a  standing  place  for  a  number  of 
people.    It  was  held  the  landlord  was  not  liable  to  a  third  person  for  an 

="'  Pope  V.  Boyle,  98  Mo.  527,  11  S.  "'  Lufkin  v.  Zane,  157  Mass.  117, 

W.  1010.  31  N.  E.  757. 

^'^  Samuelson  v.  Cleveland  &c.  Co.,  ^=  Freidenburg   v.    Jones,    63    Ga. 

49  Mich.  164,  13  N.  W.  499;   Swords  612;    Jones  v.   Freidenburg,   66   Ga. 

v.   Edgar,   59   N.   Y.   28,   17  Am.   R.  505;   Edgar  v.  Walker,  106  Ga.  454, 

295;  Todd  v.  Flight,  9  C.  B.  (N.  S.)  32  S.  E.  582.     Overruling  Center  v. 

377,  99  E.  C.  L.  377.  Davis,  39  Ga.  210. 

'^  Grogan  v.  Broadway  &c.  Co.,  87  "'  Wunder  v.  McLean,  134  Pa.  St. 

Mo.  321,  14  Mo.  App.  588.  334,  19  Atl.  749. 


607] 


EIGHTS    AXD   LIABILITIES    OF   THE   PARTIES. 


696 


injury  caused  by  the  fall."*  Provided  the  premises  were  in  a  suit- 
able state  at  the  time  the  demise  was  made,  the  conditions  must  be 
such  that  they  become  a  nuisance  from  ordinary  use  in  order  to  charge 
the  landlord  with  responsibility  to  a  stranger.^^^  In  one  case  a  rail- 
way company  leased  land  to  a  party  for  the  purpose  of  erecting  an 
elevator.  After  the  elevator  was  built,  grain  became  scattered  near  it 
and  attracted  plaintiff's  cow,  which  was  run  over,  without  negligence 
on  the  part  of  defendant's  engineer.  The  defendant  was  not  liable 
because  the  elevator  was  not  a  nuisance  but  a  lawful  structure,  and  the 
landlord  is  not  liable  for  the  negligence  of  the  tenant  in  the  use  of  the 
premises.226  rpj^g  lessor  of  a  dam  is  not  liable  for  the  mismanagement 
of  water  gates  by  the  lessee.  The  mere  erection  of  the  dam  did  no  in- 
jury and  the  lessor  of  the  mill  would  not  be  liable  for  the  mismanage- 
ment of  the  water  by  the  lessee."^  So,  where  the  owner  of  land  to 
which  a  ferry  was  annexed  as  a  franchise  leased  the  land  together  with 
the  ferry,  he  was  not  responsible  for  any  damage  sustained  by  a  third 
person  from  the  mismanagement  of  the  ferry  by  the  lessee.^^^ 

§607.  The  landlord  is  liable  for  the  damage  caused  when  the 
premises  were  let  with  the  want  of  repair  or  the  nuisance  complained 
of  already  existing.^^^  It  has  also  been  held  that  a  landlord  would 
be  liable  for  a  nuisance  caused  by  lack  of  repair  where  the  non-repair 
which  produced  the  injury  was  of  such  an  extensive  and  material 
character  that,  having  reference  to  the  duration  of  the  term,  the  tenant 
cannot  be  presumed  to  have  assumed  to  make  it.-^^  But  the  general 
doctrine  seems  to  be  that,  to  bring  liability  home  to  the  owner,  the 
leased  structure  must  be  in  such  a  condition  that  it  would  be  likely 
to  become  a  nuisance,  in  the  ordinary  and  reasonable  use  for  the  pur- 
pose for  which  it  was  constructed  and  let,  in  the  event  of  the  land- 
lord's failure  to  repair.-^^     The  tenant  is  ordinarily  bound  to  repair 


i*^  Kalis  V.  Shattuck,  69  Cal.  593, 
11  Pac.  346. 

=^  Riley  v.  Simpson,  83  Cal.  217, 
23  Pac.  293. 

^"Gilliland  v.  Chicago  &c.  R.  Co., 
19  Mo.  App.  411. 

^'  Sargent  v.  Stark,  12  N.  H.  332. 

2=s  Norton  v.  Wiswall,  26  Barb.  (N. 
Y.)  618;  Biggs  v.  Ferrell,  12  Ired.  L. 
(N.  Car.)  1. 

^'Vason  v.  City  of  Augusta,  38 
Ga.  542;  Kalis  v.  Shattuck,  69  Cal. 
593,  11  Pac.  346;   City  of  Peoria  v. 


Simpson,  110  111.  294;  Tomle  v. 
Hampton,  129  111.  379.  21  N.  B.  800, 
affirming  28  111.  App.  142;  Nelson  v. 
Liverpool  &c.  Co.,  L.  R.  2  C.  P.  D. 
311;  Frischberg  v.  Hurter,  173  Mass. 
22,  52  N.  E.  1086;  Lufkin  v.  Zane,, 
157  Mass.  117,  31  N.  E.  757;  Dalay  v. 
Savage,  145  Mass.  38,  12  N.  E.  841. 

^"Deutsch  V.  Abeles,  15  Mo.  App. 
398;  Griffith  v.  Lewis,  17  Mo.  App. 
605. 

"•Kalis  v.  Shattuck,  69  Cal.  593, 
11  Pac.  346;  Jessen  v.  Sweigert,  66 


697  LIABILITY    FOR   NUISANCE.  [§    608 

the  premises  leased  to  him,  except  where  landlord  covenants  to  re- 
pair and  where  the  premises  are  let  with  a  nuisance  upon  them.  In 
these  latter  cases  a  landlord  would  be  liable  to  a  stranger  for  injuries 
caused  by  a  defect  in  the  premises.^^^  Thus,  the  landlord  would  be 
liable  for  injuries  caused  by  the  fall  of  a  leased  wharf  where  the  whole 
structure  was  decayed  and  inseeure,^^^  but  he  would  not  be  liable  for 
an  accident  caused  by  a  loose  board  on  a  wharf.  It  was  clearly  the 
duty  of  the  lessee  in  the  latter  case  to  keep  the  driveway  safe  for  use.^^* 
This  same  principle  seems  to  have  been  applied  in  a  case  where  injury 
to  a  third  person  occurred  by  reason  of  a  broken  fence  on  leased  prem- 
ises. The  non-repair  existed  at  the  time  of  the  demise  but  it  was  of 
such  a  nature  that  the  tenant  was  under  obligation  to  make  the  re- 
pairs. The  court  did  not  apply  the  general  rule  that  a  landlord 
is  liable  for  injury  caused  by  defects  existing  at  the  time  of  the  de- 
mise. ^^^ 

A  landlord  is  liable  to  a  third  person  for  an  injury  caused  by  the 
use  of  the  premises  by  the  tenant  in  the  manner  contemplated  and  in- 
tended by  the  parties  to  the  lease.  Thus  where  a  water-wheel  on  the 
leased  premises  frightened  the  horse  of  a  traveler  along  an  adjoining 
highway,  the  landlord  was  responsible  for  the  injury.^^^ 

The  landlord  would  not,  however,  be  liable  when  the  structural  de- 
fect was  due  entirely  to  the  tenant's  negligence.  A  tenant  fitted  up 
a  room  in  a  building  in  an  improper  manner  and  was  injured  in  con- 
sequence. The  landlord  was  not  liable,  even  though  before  the  acci- 
dent happened  the  tenant's  term  expired  and  he  held  on  a  month  to 
month  tenure. ^^^ 

§  608.  Injuries  on  public  wharves. — If  property  be  of  a  public 
character  a  landlord  cannot  with  impunity  rent  it  in  an  unsafe  condi- 
tion and,  if  he  does,  may  be  required  to  answer  to  those  who  are  brought 
upon  it,  at  the  instance  of  his  lessee,  for  injuries  they  sustain.  "A 
wharf,  furnishing  the  only  mode  of  ingress  and  egress  to  a  summer 
resort  where  crowds  are  invited  to  come,  if  in  an  unsafe  and  dan- 
gerous condition  is  certainly  a  nuisance  of  the  worst  character.  It 
will  not  do  for  the  owner,  knowing  its  condition  or  having,  by  the 

Cal.    182,    4    Pac.    1188;    Rector    v.  '^Abbott  v.  Jackson,  84  Me.  449, 

Buckhart,  3  Hill   (N.  Y.)   193;   Mul-  24  Atl.  900. 

len  V.  St.  John,  57  N.  Y.  567.  ="'  Blood  v.  Spaulding,  57  Vt.  422. 

"'' O'Connor   v.   Andrews,   81   Tex.  ^^  House  v.  Metcalf,  27  Conn.  631. 

28,  16  S.  W.  628.  "^  Glass  v.  Coleman,  14  Wash.  635, 

^^  Swords  v.  Edgar,   59  N.  Y.  28,  45  Pac.  310. 
§  608. 


§    609]  RIGHTS   AXD    LIABILITIES    OF   THE   PARTIES.  698 

exercise  of  any  reasonable  care,  the  means  of  knowing  it,  to  rent  it 
out  and  receive  rent  for  it,  but  escape  all  liability  when  the  crash 
comes.  He  who  solicits  and  invites  the  public  to  his  resorts,  must  have 
them  in  a  reasonably  safe  condition,  and  not  in  a  condition  to  risk 
the  lives  and  limbs  of  his  visitors."^^^  It  follows  that  the  lessor  is  lia- 
ble to  strangers  for  injuries  received  on  a  defective  wharf.^^** 

This  doctrine  in  regard  to  public  wharves  has,  however,  been  treated 
as  an  exception  to  the  general  rule  of  non-liability  and  explained  on 
the  ground  that  a  dock  is  regarded  as  a  species  of  public  highway,  and 
the  owner  who  suffers  a  nuisance  to  be  created  on  his  dock  is  liable 
upon  the  ground  of  nuisance.^*"  And  it  seems  to  be  true  that  the 
owner  of  a  wharf  who  invites  travelers  to  use  it  as  a  passageway,  is 
under  an  obligation  to  keep  it  reasonably  safe  for  such  use.^*^ 

§  609.  Collapse  of  building. — The  rule  that  a  landlord  is  respon- 
sible for  injuries  resulting  from  the  continuance  of  a  nuisance  exist- 
ing upon  demised  premises  at  the  time  of  the  demise  has  been  applied 
to  the  case  of  a  building  falling  from  its  own  weight.  The  building 
in  controversy  was  what  is  known  as  a  "grout  building,"  consisting 
principally  of  mortar,  and  was  old.  It  fell  and  injured  the  plaintiff, 
who  was  rightfully  upon  the  premises.  It  was  held  that  an  action 
against  the  owner  alone  could  be  maintained  and  that  the  tenant  was 
not  a  necessary  party,  although  there  was  an  outstanding  lease  at  the 
time  the  accident  occurred.  The  court  say :  "If,  therefore,  the  build- 
ing in  controversy  was  originally  negligently  constructed  of  unsafe 
and  unsuitable  materials,  so  that  it  was  liable  to  fall  of  its  own  weight, 
it  constituted  a  nuisance ;"  and  the  owner  would  be  liable  to  the  in- 
jured person.  The  fact  that  the  building  stood  a  number  of  years 
without  falling  would  afford  every  slight  evidence  that  it  was  prop- 
erly constructed.^*^ 

The  extent  of  a  landlord's  liability  for  the  safety  of  halls  and  gal- 
leries used  for  public  exhibitions  is  a  matter  of  controversy.  To 
charge  the  landlord  with  responsibility  for  the  insecure  condition  of  a 
house  used  for  private  purposes,  it  is  necessary  to  show  that  he  knew, 

"« Albert  v.   State,  66  Md.  325,  7  ="  Edwards   v.   New   York   &c.   R. 

Atl.  697.  Co.,  98  N.  Y.  245. 

■''>  Smith  v.  State,  92  Md.  518,  48  =="  Baltimore  &c.  R.  Co.  v.  Rose,  65 

Atl.  92;  Albert  v.  State,  66  Md.  325,  Md.  485,  4  Atl.  899. 

7  Atl.  697;    State  v.  Boyce,  73  Md.  =«Waterhouse    v.     Schlitz    Brew. 

469,  21  Atl.  322;    Swords  v.  Edgar,  Co.,  12  S.  D.  397,  81  N.  W.  725. 
59  N.  Y.  28;  Joyce  v.  Martin,  15  R.  I. 
558,  10  Atl.  620. 


699  LIABILITY    FOR   NUISANCE.  [§    610 

or  had  reason  to  know,  that  the  structure  was  dangerously  weak  and 
imperfect.  This  same  rule  of  liability  has  been  applied  to  the  leas- 
ing of  a  public  halL^*^  This  decision  places  the  responsibility  on  the 
tenant  to  see  that  the  premises  are  not  overloaded  so  as  to  render 
them  dangerous.  The  dissenting  Judges  contended  that  the  rule  was 
different  with  reference  to  erections  in  which  public  exhibitions  and 
entertainments  were  designed  to  be  given,  and  for  admission  to  which 
the  lessors  either  directly  or  indirectly  received  compensation.  In 
such  a  case  the  lessor  owed  a  duty  to  those  who  attend  an  entertain- 
ment, requiring  him  to  use  all  reasonable  precautions  to  protect  them 
from  danger. 

That  a  stranger  who  is  injured  by  the  fall  of  a  public  grandstand 
is  entitled  to  recover  from  the  owner  who  continues  in  possession 
seems  to  have  been  settled  by  an  English  case.  A  grandstand  at  a 
race  course,  constructed  by  a  competent  builder,  fell  and  injured  a 
spectator  who  had  entered  by  license  of  the  proprietors.  The  defect 
in  construction  was  not  discoverable  by  inspection,  yet  the  court  held 
that  the  proprietors  were  liable.  The  same  reasoning  which  was  ap- 
plicable to  the  case  of  a  carrier  of  passengers  is  applicable  to  the  case 
of  a  person  who  provides  places  for  spectators  at  races  or  other  ex- 
hibitions. Not  only  did  the  court  think  that  when  the  reasons  of 
justice  and  convenience  on  the  one  side  and  on  the  other  are  weighed, 
the  balance  inclines  in  favor  of  the  plaintiff,  but  they  were  also  of 
opinion  that  the  weight  of  authority  is  on  the  plaintiff's  side.^" 

§  610.  Statutory  nuisances. — An  act  in  regard  to  the  illegal  sale 
of  liquor  provided  that  the  owner  and  all  persons  interested  in  the 
building  or  premises  in  which  such  common  nuisance  has  been  kept 
and  maintained,  as  well  as  the  keeper,  may  be  made  parties  to  injunc- 
tion proceedings.^*^  On  this  act  the  question  arose  whether  the  owner 
was  liable  to  an  injunction  without  being  "adjudged"  to  have  had 
knowledge  of  the  unlawful  use  of  his  premises,  and  whether  he  could 
be  properly  joined  as  a  party  to  the  proceedings  without  an  allegation 
in  the  information  of  such  knowledge.  The  court  held  the  landlord 
was  not  liable  to  an  injunction  without  knowledge  of  the  nuisance. 
There  was  no  reason  to  suppose  that  the  legislature  intended  to  de- 
}iart  from  the  rule  of  the  common  law  which  would  not  subject  a 
landlord  to  the  consequences  of  his  tenant's  maintaining  a  nuisance 

="  Edwards  v.  New  York  &c.  R.  "^Francis  v.  Cockrell,  L.  R.  5  Q. 
Co.,  98  N.  Y.  245.  B.  184,  501. 

"■>  Vt.  Act  of  1898,  No.  90. 


§'    6111  EIGHTS  AND  LIABILITIES  OF  THE  PARTIES.  TOO 

without  the  landlord  being  chargeable  with  notice  of  the  existence  of 
the  nuisance.  While  the  adjudication  does  not  convict  the  owner  of 
crime,  it  casts  odium  on  him  by  reason  of  an  unlawful  act  of  another 
person,  committed  without  his  knowledge  or  fault.  The  injunction, 
if  issued,  would  compel  the  landlord  to  become  a  guarantor  that  the 
tenant  shall  not  violate  the  law  in  the  future.^*^ 

It  may  be  laid  down  as  a  general  rule  that  a  landlord  cannot  be 
made  responsible  in  a  criminal  proceeding  for  the  act  of  his  tenant  in 
creating  a  nuisance,  even  though  he  knew  of  it  and  did  not  dissent. 
In  criminal  cases  the  commonwealth  must  prove  that  the  defendant 
himself  did  the  act  charged.  There  are,  it  is  true,  some  exceptional 
cases  where  it  is  sufficient  to  prove  the  act  of  an  agent,  but  no  case  goes 
so  far  as  to  convict  a  landlord  for  the  act  of  his  tenant,  even  though 
he  knew  of  it  and  did  not  dissent.  ^^^ 

There  would  seem  to  be  no  constitutional  objection  to  a  city  ordi- 
nance making  a  landlord  civilly  liable  for  the  clean  and  proper  con- 
dition of  leased  premises  after  he  had  received  due  notice  of  the  filthy 
condition  which  caused  them  to  be  a  nuisance.  The  tenant  may  be  an 
irresponsible  party;  the  landlord  can  select  his  own  tenants  and  im- 
pose on  them  all  reasonable  restrictions;  but  a  town  or  city  has  no 
such  authority.  Nor  can  it  be  urged  that,  when  the  terms  "owner"  and 
"occupant"  are  used  in  a  city  ordinance,  the  occupant  is  the  owner 
for  the  time  being.  If  such  were  the  construction,  then  one  of  the 
words  would  be  superfluous.^*^  It  should  be  noted,  however,  that  the 
Missouri  Court  of  Appeals  interpreted  a  similar  ordinance  to  put  the 
responsibility  on  the  tenant  alone,  on  the  ground  that  it  would  be  un- 
constitutional if  it  applied  to  the  landlord.  The  argument  of  the 
court  was  that  the  landlord  had  surrendered  entire  possession  and 
control  for  the  term,  and  had  no  more  right  of  entry  than  any 
stranger.  The  tenant  could  resist  the  landlord's  invasion  of  the  prem- 
ises as  a  violation  of  law,  and  the  ordinance  requiring  the  landlord  to 
abate  nuisances  would  command  a  violation  of  law  and  impose  penal- 
ties for  a  failure  to  violate  the  law.^*^ 

§  611.  What  constitutes  a  reletting. — Since  the  liability  of  the 
landlord  in  many  cases  depends  on  whether  the  nuisance  causing  the 
injury  existed  at  the  time  the  demise  was  made,  it  becomes  important 
to  determine  what  the  date  of  the  leasing  is.    No  difficulty  ordinarily 

=««  State  v.  Massey,  72  Vt.  210,  47  =^  Bangor  v.  Rowe,  57  Me.  436. 

Atl.  834.  "°  St.  Louis  v.  Kaime,  2  Mo.  App. 

"^Commonwealth  v.   Switzer,   134  66. 
Pa.  St.  383,  19  Atl.  681. 


701  LIABILITY  FOR  NUISANCE.  [§    611 

arises  except  in  the  case  of  a  periodic  tenancy,  where  the  controversy 
is  whether  there  is  a  continuing  demise  or  a  new  demise  with  each  re- 
curring period.  The  Court  of  Queen's  Bench  thought  the  letting 
must  be  deemed  to  begin  anew  with  every  successive  year  of  a  year  to 
year  tenancy.^^"  But  on  appeal  the  Court  of  Exchequer  Chamber 
took  the  opposite  view.  The  ground  for  this  difference  of  opinion  is 
stated  as  follows:  "We  agree  .  .  .  that  it  is  a  sound  principle 
of  law  that  the  owner  of  property  receiving  rent  should  be  liable  for 
a  nuisance  existing  on  his  premises  at  the  date  of  the  demise ;  but  that 
wherein  we  differ  is,  that  a  landlord  from  year  to  year,  having  the 
power  to  give  the  ordinary  notice  to  quit,  and  not  giving  it,  is  thereby 
to  be  held  as  reletting  the  premises,  and  that  such  failing  to  give 
notice  is  equivalent  to  a  reletting."^^^ 

The  Missouri  Court  of  Appeals  approve  and  adopt  the  opinion  of 
the  Court  of  Queen's  Bench  on  this  point,  without  noticing  the  subse- 
quent action  of  the  Court  of  Exchequer  Chamber  on  appeal.  Thomp- 
son, J.,  says  in  his  opinion :  "That  rule,  it  seems  to  us,  is  more  con- 
sonant with  the  respective  duties  of  landlord  and  tenant  in  respect 
to  the  rights  of  adjoining  landowners,  than  a  rule  which,  by  a  fiction, 
enlarges  the  term  of  the  tenant,  holding  merely  at  the  will  of  the 
landlord  and  liable  to  be  ejected  after  a  month's  notice,  to  a  term  for 
years  and  which  makes  him  prima  facie  liable  to  third  persons  for 
injuries  resulting  from  a  non-repair  of  the  premises."^^^  When  the 
same  question  came  before  the  Supreme  Court  of  Kentucky  it  was  held 
that  under  a  month  to  month  tenancy,  the  landlord  must  be  regarded 
as  leasing  the  premises  at  the  beginning  of  every  month.^^* 

Wliere  a  lease  contains  a  provision  for  extending  the  original  term, 
such  a  renewal  would  not  be  a  reletting,  and  the  landlord  would  not  be 

'"*'  Gandy  v.  Jubber,  5  B.  &  S.  78.  contrary  to  what  we  know  to  be  the 

^"  Gandy  v.  Jubber,  9  B.  &  S.  15.  general  practice  in  the  cases  of  such 

=^2  Griffith  v.   Lewis,  17  Mo.  App.  tenancies  in  this  state.    In  the  pres- 

605,  613.  The  opinion  continues  with  ent  case  a  rule  that  would  make  a 

the    following    argument:     "Where  tenant  from  month  to  month  of  a 

the  extent  of  the  term  which   the  tenement   house   liable  to   repair   a 

tenant  has  in  the  premises  is  but  privy  vault  which   had   become  di- 

thirty  days,  the  value  of  which  may  lapidated    in   consequence   of   years 

be  a  few  dollars  only,  a  rule  which  of  decay,  which  repair  might,  and 

would  make  him  liable  to  make  any  probably  would,  cost  several  times 

repairs  except  those  of  a  trifling  or  the  amount  of  a  month's  rent,  would 

temporary    character,    such    as   the  be  highly  absurd." 
restoration  of  window  panes  broken         '^^  East  End  Imp.  Co.  v.  Sipp,  14 

by  him  or  the  like,  would  not  only  Ky.  L.  R.  924. 
be  absurd  and  unjust,  but  would  be 


§'   612]  RIGHTS  AXD  LIABILITIES   OF   THE   PARTIES.  702 

liable  for  a  nuisance  existing  on  the  premises  at  the  beginning  of  the 
renewal  term.  But  where  the  lessor  and  lessee  execute  a  new  lease 
which  operates  as  a  surrender  of  the  old  one,  this  is  a  new  letting. 
The  landlord  would  be  responsible  for  the  condition  of  the  premises 
at  the  time  the  surrender  took  place.^^* 

IV.    Premises  Occupied  hy  more  than  one  Tenant. 

§  612.  Obligation  to  repair  roof. — The  general  doctrine  that  in 
the  absence  of  express  covenants  a  landlord  is  not  bound  to  repair 
applies  to  a  case  where  tenant  had  leased  the  lower  floor  of  a  several 
family  house  and  the  upper  floor  continued  in  the  possession  and 
within  the  control  of  the  landlord  himself.  There  was  no  greater  ob- 
ligation on  the  landlord  to  repair  than  if  the  premises  had  been  side 
by  side.^^^  According  to  the  general  doctrine  a  landlord  is  imder  no 
obligation  to  guarantee  that  leased  premises  are  or  will  continue  suit- 
able or  safe  for  the  lessee's  use ;  and  this  rule  extends  to  parts  of  the 
premises  not  expressly  demised  to  the  tenant,  such  as  a  common  roof 
which  is  necessary  to  his  protection.-^**  It  has  been  urged  that  the 
landlord  would  be  liable  on  the  basis  of  the  maxim  sic  utere  tuo  ut 
alienum  non  laedas.  This  maxim  restrains  a  man  from  using  his  own 
property  to  the  prejudice  of  his  neighbor,  but  is  not  usually  appli- 
cable to  a  mere  ommission  to  act,  but  rather  to  some  affirmative  act  or 
course  of  conduct  which  amounts  to  or  results  in  an  invasion  of  an- 
other's rights.  A  man  "is  bound  to  protect  his  neighbor  against  in- 
jury caused  by  his  own  structures,"  but  in  the  absence  of  contract,  he 
is  not  bound  to  replace  or  repair  structures  which  have  fallen  into 
decay,  merely  for  the  purpose  of  protecting  his  neighbor's  property, 
simply  because  such  structures  previously  afforded  such  protection."^^ 
Thus,  where  tenant  of  a  lower  floor  was  injured  by  the  neglect  of  the 
landlord  to  repair  a  roof  over  the  entire  premises  which  were  in  his 
possession,  it  was  held  that  this  maxim  did  not  put  the  landlord  under 
obligation  to  put  in  repair  his  property  to  afford  protection  to  his 

^=*  Fleischuer  v.  Citizens'  Inv.  Co.,  Brewster   v.    De    Premery,    33    CaL 

25  Ore.  119,  35  Pac.  174.  341;  Walker  v.  Gilbert,  2  Robt.   (N. 

"^^Krueger   v.    Ferrant,    29    Minn.  Y.)   214. 

385,  13  N.  W.  158;  Carstairs  v.  Tay-  ==«  Hanley  v.  Banks,  6  Okla.  79,  51 

lor,   L.   R.    6   Exch.    217;    Keates  v.  Pac.    664;    Krueger    v.    Ferrant,    29 

Cadogan,  10  C.  B.  591,  70  E.  C.  L.  Minn.  385,  13  N.  W.  158. 

591;    Pomfret   v.    Ricroft,    1    Saund.  -"Doupe  v.  Genin,  45  N.  Y.  119; 

321;  Cbauntler  v.  Robinson,  4  Exch.  Krueger  v.  Ferrant,  29  Minn.  385,  13 

163;  Doupe  v.  Genin,  45  N.  Y.  119;  N.  W.  158. 


703  PREMISES  OCCUPIED  BY  MORE  THAX  OXE  TENANT.         [§    613 

neighbor  merely  because  it  previously  afforded  such  protection.^^*  The 
landlord  is  not  liable  either  upon  an  implied  covenant  to  repair  or 
upon  the  relation  of  the  parties  to  each  other  on  the  leased  premises. 
Here  the  lessor  had  been  merely  passive;  he  had  no  affirmative  duty 
toward  lessee.  So  long  as  a  lessor  abstains  from  all  action  he  is  within 
the  line  of  his  duty.^^^ 

Under  similar  circumstances,  however,  the  Supreme  Court  of  Maine 
held  the  landlord  liable.  The  landlord  had  the  care  and  control  of  the 
roof  for  the  benefit  of  himself  and  his  tenants.  By  implication,  he 
undertook  so  to  exercise  his  control  as  to  inflict  no  injury  upon  his 
tenants.  Such  was  the  reasoning  of  the  court  in  making  the  deci- 
sion.^**^  Among  the  cases  relied  on  for  authority  was  one^^^  where 
a  landlord  was  held  liable  for  injury  caused  to  his  tenant  by  a  waste 
pipe  of  an  engine  operated  by  the  landlord.  The  Mississippi  court 
criticize  the  Maine  case  as  follows:  "The  decision  and  its  reasoning 
are  not  satisfactory,  and  the  vice  of  the  opinion  is  that  it  confounds 
the  passivity  of  the  landlord  with  affirmative  action  on  his  part  amount- 
ing to  negligence.  It  overlooks  the  fundamental  principle  in  all  leases, 
by  which  the  lessor  is  made  to  'hands  off'  during  the  continuance  of 
the  lease.  He  may  not  be  required  to  affirmatively  aid  the  tenant  in 
repairs;  and  he  may  not  affirmatively  act  inconsistently  with  his  les- 
see's right  to  possession  and  enjoyment,  and  so  long  as  the  lessor  ab- 
stains from  all  action,  he  is  within  the  line  of  his  duty.  The  Maine 
case  confounds  negligence  with  non-intervention,  and  is  unsound."-*'^ 
The  Illinois  Court  of  Appeals  reached  the  same  conclusion  as  the 
Maine  court  in  a  ease  where  damage  was  caused  by  the  landlord's 
failure  to  repair  a  leaky  roof.  The  ground  of  decision  was  that  as  the 
lessee  had  agreed  to  repair  the  part  of  the  premises  let  to  him,  the 
fair  implication  was  that  the  lessor  undertook  to  keep  the  remainder 
of  the  building  in  repair.^®^ 

§  613.  Duty  as  to  side-walls. — The  responsibility  of  a  landlord  of 
a  tenement  house  to  strangers  for  injuries  received  from  a  falling  wall 
which  has  remained  within  his  control  does  not  extend  to  the  tenants. 

^*  Krueger   v.    Ferrant,   29    Minn.  ="'  Priest  v.  Nichols,  116  Mass.  401. 

385,  13  N.  W.  158;  Vai  v.  Weld,  17  ""=  Jones  v.   Millsaps,  71   Miss.  10, 

Mo.  232;  Jones  v.  Millsaps,  71  Miss.  16,  14  So.  440,  per  Woods,  J. 

10,  14  So.  440.  ^''  Trower  v.  Wehner,  75  111.  App. 

^'^  Jones  V.  Millsaps,  71  Miss.  10,  655,  citing  Bissell  v.  Lloyd,  100  III. 

14  So.  440.  214. 

=«°  Toole  V.  Beckett,  67  Me.  544,  24 
Am.  R.  54. 


§    613]  RIGHTS  AXD  LIABILITIES   OF   THE  PARTIES.  704 

The  landlord  is  not  bound  to  repair  and  it  is  immaterial  whether  the 
tenant  be  the  lessee  of  the  whole  or  of  only  a  part  of  the  premises.    So, 
where  the  main  wall  of  a  building  fell  through  the  negligence  of  the 
landlord,  he  was  not  liable  for  injury  caused  thereby  to  a  tenant  of 
certain  rooms.^®*    A  court  has  applied  the  general  rule  of  non-liability 
to  the  case  of  a  building  falling  because  of  excavations  on  an  adjoin- 
ing lot  and  crushing  furniture  belonging  to  a  tenant,  who  occupied 
only  the  basement  story,^®^  and  to  the  case  of  the  swelling  and  bulging 
out  of  the  side  walls  of  a  storeroom  whereby  it  became  untenantable.^^* 
The  duty  of  a  landlord  to  a  tenant  of  a  part  of  a  building  precludes 
him  from  allowing  any  other  part  of  the  building  from  being  put  to 
a  use  which  will  injure  such  tenant.    Furthermore,  on  letting  a  part 
of  the  premises,  the  landlord  impliedly  agrees  that  he  has  not  author- 
ized anything  which  will  endanger  the  safety  of  the  building.    These 
rules  were  applied  in  a  case  where  a  tenant  of  an  upper  story  was 
authorized  to  store  heavy  articles  which  the  landlord  knew  the  build- 
ing would  not  support.    The  landlord  was  held  liable  for  the  injury 
to  a  tenant  of  the  lower  floor  upon  the  collapse  of  the  building.^" 
In  a  case  with  similar  facts  the  court  say  in  the  course  of  an  opinion 
Teaching  a  similar  result:  "Had  it  (the  building)  fallen  before  it  was 
used  at  all,  had  the  superstructure  been  so  defective  as  to  be  unable 
to  sustain  itself, — it  would  have  been  indictable  as  a  common  nuisance ; 
and  nobody  doubts  that  the  owner,  at  whose  instance  it  was  erected, 
would  have  been  answerable  to  individuals  for  the  damage  occasioned ; 
but  the  wrong  consisted,  not  in  erecting  walls  incapable  of  standing 
alone,  but  in  building  and  renting  the  store  for  a  specific  purpose  for 
which  it  was  unfit  and  unsafe.    In  itself  it  may  not  have  been  a  com- 
mon nuisance,  but  the  maxim  sic  utere  is  not  confined  to  common 
nuisances.     .     .     .     Tempted  by  a  large  rent  the  landlord  permitted 
this  building  to  be  subjected  to  burdens  too  heavy  for  it  to  bear, 
though  lighter  than  the  tenant  had  a  right  to  impose,  and  herein  is 
the  ground  of  his  liability ."^«« 

It  has  been  held  that  a  landlord  was  liable  for  an  accident  caused 
to  a  tenant  by  a  falling  sign-board.  The  tenant  rented  only  part  of 
the  ground  floor  of  a  one-story  building  and  the  rest  of  the  building, 

="Ward  v.  Fagin,  101  Mo.  669,  20  »^  The    Brunswick-Balke-Collender 

Am.  St.  650,  10  L.  R.  A.  149.  Co.  v,  Rees,  69  Wis.  442,  34  N.  W. 

=^  Sherwood   v.    Seaman,   2   Bosw.  732. 

(N.  Y.)  127.  =^Godley   v.    Hagerty.   20   Pa.    St. 

=««  Kline  v.  McLain,  33  W.  Va.  32,  387,   59   Am.   Dec.   731,   affirmed   in 

5  L.  R.  A.  400.  Carson  v.  Godley,  26  Pa.  St.  Ill,  67 

Am.  Dec.  404. 


705  PREMISES  OCCUPIED  BY  MORE  THAN  ONE  TEXAXT.         [§    614 

including  the  roof,  was  occupied  by  the  landlord.  The  sign-board 
belonged  to  the  landlord  and  was  used  to  advertise  his  business.  The 
landlord  had,  during  the  entire  term,  exercised  control  over  and  taken 
charge  of  the  outside  of  the  building.  He  could  not  be  exonerated 
from  responsibility  to  keep  in  reasonably  safe  and  secure  condition 
that  portion  of  the  building  over  which  he  retained  control.  The  jury 
had  found  that  the  landlord  was  guilty  of  negligence  in  allowing  the 
fastenings  of  the  sign-board  to  become  insecure  and  that  the  tenant 
was  in  the  exercise  of  due  carc^****  If  the  person  injured  had  been  a 
traveller  along  the  highway  or  a  business  visitor  of  the  landlord,  there 
would  have  been  no  doubt  as  to  the  liability  of  the  landlord.  It  would 
have  rested  on  the  general  doctrine  as  to  the  responsibility  of  an 
owner  of  real  estate.  The  result  of  the  case  is  to  place  upon  the  land- 
lord an  equal  burden  of  responsibility  for  the  personal  safety  of  his 
tenants. 

An  awning  extending  over  the  sidewalk  across  the  whole  front  of 
a  building  is  an  entire  structure.  It  could  be  built  and  maintained 
for  the  advantage  of  shops  in  the  building  without  being  leased  with 
them.  The  responsibility  for  the  good  repair  of  such  an  awning  re- 
mains with  the  general  owner,  who  is  a  partial  occupant.  His  liability 
for  the  awning  is  like  that  which  he  would  be  under  for  the  condition 
of  the  roof,  the  eaves,  the  chimneys,  and  other  parts  of  the  building 
not  appropriated  to  the  exclusive  use  of  any  particular  tenant,  or  to 
all  of  them  to  the  exclusion  of  the  landlord.^'^" 

§  614.    Duty  of  landlord  as  to  common  passageways  in  tenement. 

— The  prevailing  rule  seems  to  be  that  a  landlord  who  leases  separate 
portions  of  the  same  building  to  different  tenants,  and  retains  ex- 
clusive control,  for  the  purpose  of  repairs  and  construction,  of  the 
porches,  galleries,  and  stairways,  used  in  common  by  all  the  tenants, 
is  under  an  implied  obligation  to  use  reasonable  diligence  to  keep  such 
reserved  parts  in  a  safe  condition  for  the  use  of  a  tenant  occupy- 
ing a  part  of  the  premises  and  for  the  members  of  his  family.  For 
a  failure  to  perform  that  duty  the  law  attaches  to  him  liability  for 
injury  to  such  tenant  or  to  a  member  of  his  family.^^^   But  the  gen- 

='°  Payne  v.  Irvin,  144  111.  482,  33  Gleason  v.  Boehm,  58  N.  J.  L.  475, 

N.  E.  756,  affirming  44  111.  App.  105.  34  Atl.  886;  Sawyer  v.  McGillicuddy, 

""Mllford    v.    Holbrook,    9    Allen  81  Me.  318,  17  Atl.  124,  3  L.  R.  A. 

(Mass.)  17.  458;  Lindsey  v.  Leighton,  150  Mass. 

"'  McGinley  v.  Alliance  Trust  Co.,  285,  22  N.  E.  901 ;  Watkins  v.  Good- 

168  Mo.  257,  66  S.  W.  153;  Schwandt  all,   138   Mass.   533;    Looney  v.   Mc- 

V.  Metzger  &c.  Co.,  93  111.  App.  365;  Lean,  129  Mass.  33,  37  Am.  R.  295; 
Jones  L.  &  T.— 45 


§    614]  EIGHTS  AND  LIABILITIES   OF  THE  PARTIES.  706 

eral  rule  that,  on  the  demise  of  a  buikling,  there  is  no  implied  cove- 
nant of  fitness,  applies  to  the  letting  of  several  rooms  in  a  tenement 
house  if  they  pass  entirely  out  of  the  control  of  the  landlord.^^^  Yet 
the  rule  relieving  the  landlord,  in  the  absence  of  special  agreement, 
from  making  ordinary  repairs  during  the  term  of  the  lease,  does  not 
release  him  from  liability  in  case  of  injuries  resulting  from  his  failure 
to  keep  in  proper  repair  such  portions  of  a  tenement  house  as  are  not 
leased  to  any  particular  tenant,  but  are  retained  in  the  control  of  the 
landlord  for  the  common  use  of  several  tenants.^^^  The  basis  of  this 
liability  has  been  declared  to  be  the  landlord's  invitation  to  the  tenant 
to  use  the  common  passageways  in  passing  to  and  from  the  demised 
rooms  and  the  analogy  is  to  a  landowner  who  invites  customers  to  his 
place  of  business.^^*  In  respect  to  the  common  passageways  of  tene- 
ment houses,  a  landlord  owes  the  same  duty  to  his  tenant  as  to  a  ' 
business  visitor,  according  to  this  theory  of  the  law.^''^ 

By  evidence  showing  an  agreement  by  a  landlord  to  repair  a  railing 
or  banister  causing  an  injury  after  notice  of  its  dangerous  condition, 
and  that  the  stairway  of  which  this  railing  or  banister  formed  a  part 
was  used  in  common  by  other  tenants  in  the  building,  that  the  in- 
jured person  was  a  member  of  a  tenant's  family  and,  not  knowing  the 
danger,  was  injured  by  reason  of  the  defective  and  dangerous  con- 
dition of  the  railing,  a  case  is  made  out  to  go  to  the  jury.^^®  But  a 
verdict  finding  that  a  person  descending  a  stairway  with  which  he  was 
not  familiar,  in  the  dark,  and,  having  at  hand  means  to  insure  his 
safety,  passes  on  with  no  precautions  except  the  groping  with  his 
hands  and  feeling  with  his  feet,  is  exercising  the  care  which  a  prudent 
person  would  exercise,  cannot  be  supported,  as  it  is  clearly  contrary 
to  the  evidence.^"  Still,  mere  continued  use  of  a  common  passage- 
way after  knowledge  of  its  dangerous  condition  is  not  of  itself  con- 

Donohue  v.  Kendall,  98  N.  Y.   635,  v.   Allyn,   162   Mass.   270,   38   N.  E. 

affirming  18  Jones  &  S.  386;  Hilsen-  497;    Coupe  v.  Piatt,  172  Mass.  458, 

beck  V.  Guhring,  131  N.  Y.  674,  30  52  N.  E.  526. 

N.  E.  580,  36  N.  Y.  St.  452;   Palmer  "'Sawyer  v.  McGillicuddy,  81  Me. 

v.  Bearing,  93  N.  Y.  7;  Peil  v.  Rein-  318,  17  Atl.  124. 

hart,  127  N.  Y.  381,  27  N.  E.  1077,  12  ^'^  McCarthy  v.  Fagin,  42  Mo.  App. 

L.  R.  A.  843.  619;  Gillion  v.  Reilly,  50  N.  J.  L.  26, 

-''-McKeon    v.    Cutter,    156    Mass.  11  Atl.  481. 

296,  31  N.  E.  389.  ""  Schwandt  v.  Metzger  &c.  Co.,  93 

"^Gallagher   v.   Button,    73    Conn.  111.  App.  365. 

172,  46  Atl.   819;    Peil  v.   Reinhart,  =^  Gleason  v.  Boehm,  58  N.  J.  L. 

127  N.  Y.  381,  27  N.  E.  1077;  Looney  475,  34  Atl.  886;  Hilsenbeck  v.  Guth- 

V.  McLean,  129  Mass.  33;  Moynihan  ring,  131  N.  Y.  674,  30  N.  E.  580. 


7or 


PREMISES  OGCrPIED  BY  MORE  THAN  ONE  TENANT. 


[§  615 


elusive  evidence  of  a  lack  of  due  care  on  the  part  of  the  tenant.^^^  In 
order  to  fix  the  responsibility  upon  the  landlord,  however,  the  defect 
must  have  been  the  cause  of  the  accident.  Thus,  where  a  horse  had 
been  hitched  to  an  outside  stairway  and,  becoming  frightened,  pulled 
it  down,  to  the  injury  of  the  tenant's  wife,  the  landlord  was  not  liable. 
The  injury  was  caused  by  the  horse  and  it  was  not  the  landlord's  duty 
to  protect  the  tenant  from  intruders.^'^^ 

§  615.  There  are  other  decisions  in  which  the  reasoning  is  directly 
opposed  to  the  principles  just  laid  down.-^'^  The  argument  in  these 
contrary  decisions  is  that  the  liability  of  the  landlord  cannot  be  in- 
creased by  the  circumstance  that  he  lets  to  more  than  one  tenant.  In 
one  case  it  was  said :  "It  is  difficult  to  perceive  how  the  fact  that  the 
landlord  hired  out  apartments  to  separate  tenants  and  that  the  com- 
mon stairway  was  the  common  passageway  for  all,  can  exert  a  con- 
trolling influence  upon  the  question  of  the  landlord's  liability.  The 
landlord's  duty  is  the  same  whether  he  demises  to  one  or  to  many,  so 
far  as  concerns  his  liability  to  the  tenant  for  personal  injuries  caused 
by  a  failure  to  repair."^*^ 


"'Looney  v.  McLean,  129  Mass. 
33. 

"'Piatt  V.  Farney,  16  111.  App. 
216. 

^s'Purcell  V.  English,  86  Ind.  34, 
44  Am.  R.  255;  Cole  v.  McKey,  66 
Wis.  500,  29  N.  W.  279,  57  Am.  R. 
293;  Humphery  v.  Wait,  22  U.  C. 
C.  P.  580;  Bowling  v.  Nuebling,  97 
Wis.  350,  72  N.  W.  871. 

="iPurcell  V.  English,  86  Ind.  34, 
44  Am.  R.  255.  This  subject  is  dis- 
cussed in  an  exhaustive  article 
in  the  American  Law  Review,  vol- 
ume 6,  page  614.  The  conclusion 
reached  is  that  the  rule  of  caveat 
emptors  applies  in  regard  to  pas- 
sageways in  a  tenement  house  and 
that  the  tenant  and  those  relying 
on  his  right  cannot  hold  the  land- 
lord responsible  for  defects  in  con- 
struction or  for  lack  of  repair.  The 
basis  of  this  conclusion  is  shown 
in  the  following  quotation:  "It  is 
true  that  these  portions  are  not 
parcel  of  the  demise,  strictly  speak- 


ing, nor  is  the  tenant  charged  with 
any  active  duty  with  what  as  to 
the  public  or  the  landlord  he  has  no 
exclusive — we  might  perhaps  say 
any — control  over.  He  is  not  the 
bailee  thereof,  and  his  character  as 
such  in  regard  to  the  demised 
premises  will  not  assist  us  to  settle 
his  rights  here.  But  it  is  not  to 
be  inferred  from  this  that  he  is  a 
stranger  thereto  and  that  he  can 
hold  the  landlord  to  the  same  re- 
sponsibility as  a  third  person  can. 
It  has  indeed  been  attempted  to  de- 
termirie  his  rights  by  the  applica- 
tion of  the  maxim  sic  utere  tuo. 
But  it  will  be  seen,  as  we  suggested 
at  the  beginning  of  this  article,  that 
the  fundamental  question,  rather, 
is  what  is  the  extent  of  the  owner- 
ship than  what  is  the  mode  of  user 
required.  This  question  we  have 
in  part  answered  by  the  cases  just 
reviewed,  which  settle  that  the  gen- 
eral title  remains  with  the  lessor. 
But  this  ownership  is  not  exclusive, 


§'  616]  RIGHTS  AXD  LIABILITIES   OF   THE   PARTIES.  708 

§  616.  To  make  a  landlord  liable  for  injuries  caused  by  water 
flowing  from  a  closet  on  the  tenant,  it  must  be  shown  that  the  agen- 
cies causing  the  damage  were  under  the  supervision  of  the  landlord 
or  his  agent  and  that  there  was  neglect  in  the  management  thereof."- 
"The  liability  of  the  landlord  does  not  necessarily  follow  from  the 
fact  that  the  building  does  not  contain  the  latest  and  most  improved 
system  of  water  pipes.  He  does  not  insure  against  the  negligence  of 
his  tenants."^^^  So  it  may  be  stated  as  a  general  rule  that  where  the 
water  fixtures  are  properly  constructed  and  the  damage  was  caused 
by  the  negligence  of  another  tenant,  the  landlord  is  not  liable;  for 
landlords  are  not  responsible  for  the  carelessness  of  their  tenants  in 
the  use  of  such  fixtures.^^*  But  it  seems  a  landlord  might  become  lia- 
ble for  damage  caused  by  leakage  in  a  water-closet  caused  by  im- 
proper use  of  it  by  tenants  when  he  knew  of  such  improper  use  and 
permitted  it  to  continue.  The  court  in  holding  the  landlord  liable 
admit  he  would  not  be  responsible  if  the  tenant  above  wantonly  threw 
down  water  on  the  tenant  below,  but  place  the  liability  on  the  slender 
ground  that  he  knew  of  a  previous  leak.-^^  The  court  argue  that  the 
landlord  is  responsible  for  a  nuisance  upon  the  premises  but  fail  to 
observe  that  the  closet  was  not  a  nuisance  in  itself  but  only  became 
one  by  the  improper  conduct  of  the  tenants.  Water  pipes  running 
through  a  room  occupied  by  a  tenant  to  a  vacant  room  within  the  con- 
trol of  the  landlord  were  allowed  to  freeze  and  injured  the  tenant's 
goods,  both  landlord  and  tenant  having  access  to  the  shut-off.     The 

for  there  can  be  no  doubt  that  the  tenant  is  merely  licensed  or  privi- 
tenant  has  a  qualified  interest  in  leged  to  use  in  connection  with  his 
the  nature  of  an  easement  in  the  own  tenement,  the  principle  of 
same;  and  just  in  so  far  as  this  caveat  emptor  applies,  and  restricts 
easement  extends,  a  right,  with  a  recovery  for  whatever  he  could 
corresponding  duty,  of  inspection  have  discovered  or  can  remedy  by 
also  extends,  and,  therefore,  an  as-  due  inquiry  or  inspection." 
sumption  of  the  risks  from  the  =«=  Mendel  v.  Fink,  8  111.  App.  378. 
original  construction,  and  also  =«^  McCarthy  v.  York  Co.  Sav. 
from  the  temporary  condition  of  the  Bank,  74  Me.  315. 
parts  of  the  premises  in  which  the  =»*  Haizlip  v.  Rosenberg,  63  Ark. 
easement  is  enjoyed,  so  far  as  the  430,  39  S.  W.  60;  Kenny  v.  Barns, 
same  could  be  inspected."  The  con-  67  Mich.  336,  34  N.  W.  587;  Rosen- 
elusion  of  the  author  is  stated  as  field  v.  Newman,  59  Minn.  156,  60 
follows:  "We  think,  therefore,  we  N.  W.  1085;  White  v.  Montgomery, 
are  justified  in  the  conclusion  that  58  Ga.  204;  Allen  v.  Smith,  76  Me. 
even  as  to  the  condition  and  repair,  335;  Greene  v.  Hague,  10  111.  App. 
as  well  as  the  construction  of  such  598;  Strauss  v.  Hamersley,  13  N.  Y. 
portions  of  the  premises  as  are  not  816. 
expressly    demised,    but   which   the  =*=  Marshall  v.  Cohen,  44  Ga.  489. 


709  PREMISES  OCCUPIED  BY  MORE  THAX  OXE  TEXAXT.         [§    617 

lancllord  was  not  liable  for  the  injury  because  lie  was  under  no  duty 
to  shut  off  the  water,  although  he  had  the  right  to  do  so  for  his  own 
protection  if  he  chose.-®*^  A  covenant  in  a  lease  of  rooms  in  a  build- 
ing to  save  the  lessor  harmless  from  injury  caused  by  the  bursting  of 
water-pipes  was  followed  by  a  provision  that  all  merchandise  and 
furniture  of  the  lessee  should  be  at  his  sole  risk  and  hazard,  in  case 
of  injury  by  fire  or  water.  The  language  of  the  provision  being  broad, 
was  held  by  its  natural  import  to  throw  upon  the  lessee  the  risk  of  loss 
or  damage  to  his  property  in  the  store,  caused  by  the  leakage  or  burst- 
ing of  water  pipes  in  any  part  of  the  building.  One  of  the  clauses 
in  the  lease  would  be  superfluous  if  it  were  only  intended  to  exempt 
the  lessor  from  liability  for  damage  caused  by  bursting  of  water  pipes 
within  the  leased  premises. ^^^ 

§  617.  To  whom  this  duty  extends. — The  use  of  rooms  in  a  tene- 
ment for  dwellings  equally  necessitates  the  use  of  the  passage  by 
tradesmen  in  delivering  goods,  by  persons  having  other  business  with 
the  occupant  or  by  those  who  visit  him  for  social  reasons.  With  re- 
spect, therefore,  to  all  persons  visiting  such  a  tenant  upon  any  law- 
ful occasion,  the  duty  of  the  landlord  is  similar  to  that  which  he  owes 
to  the  tenant.^^^  This  duty  extends  to  the  servants  and  agents  of  the 
tenant.  Thus,  in  one  case  a  person  boarding  with  the  tenant  was  in- 
jured by  a  defect  in  a  common  platform  used  by  the  occupants  of  the 
building  for  drying  clothes.  The  landlord  was  held  liable.  Although 
the  boarder  was  working  gratuitously,  she  was  in  a  sense  a  servant  or 
agent  of  the  tenant  and  she  went  upon  the  roof  in  the  agent's  right.-'*" 
The  landlord  also  owes  the  same  duty  to  business  visitors  of  the  ten- 
ant and  is  liable  for  injuries  suffered  by  them.  All  persons  having 
occasion  to  visit  any  of  the  offices  in  a  building  on  legitimate  business 
with  any  of  the  tenants  therein  have  an  implied  invitation  from  the 
owners  of  the  property  to  use  the  common  entrance  and  passage  for 
that  purpose ;  and  the  landlord  owes  a  duty  to  all  such  persons  which 
carries  with  it  an  obligation  to  exercise  reasonable  care  and  prudence 
to  provide  a  safe  and  suitable  entrance  to  such  offices,  and  to  have  the 
approaches  thereto  so  constructed  and  maintained  that  visitors  would 
not  be  liable  to  step  into  dangerous  pitfalls  by  reason  of  misleading 

'-^"Buckley    v.    Cunningham,    103  L.  R.    (1893)    2  Q.   B.  177;    Hilsen- 

Ala.  449,  15  So.  826.  beck  v.  Guhring,  131  N.  Y.  674,  30 

-"Fera    v.    Child,    115    Mass.    32;  N.  E.  580. 

Taylor  v.  Bailey,  74  111.  178.  ^^^  Wilcox  v.  Zane,  167  Mass.   302, 

^'Gleason  v.  Boehm,  58  N.  J.  L.  45   N.  E.   923;    Ganley  v.   Hall,   168 

475,  34  Atl.  886;   Miller  v.  Hancock,  Mass.  513,  47  N.  E.  416. 


§    618]  RIGHTS   AXD  LIABILITIES   OF   THE   PARTIES.  710 

doors  and  deceptive  landings.-^"  TVliere  a  tenant  in  an  apartment 
house  called  in  an  officer  to  arrest  a  person  who  was  creating  a  breach 
of  the  peace,  the  oflficer  came  to  the  house  lawfully  and  could  recover 
from  the  landlord  for  an  injury  caused  by  a  defect  in  a  common  pas- 
sageway. It  would  not  affect  his  right  to  recover  if  the  arrest  were 
unlawful.^^^  This  duty  on  the  part  of  the  landlord  does  not,  however, 
extend  to  mere  social  visitors.  Such  a  visitor  would  be  a  mere 
licensee,  if  there  was  no  previous  appointment  to  call,  and  no  previous 
notice  of  an  intention  to  call  had  been  given.-^-  An  exception  to  this 
rule  has  been  made  where  the  guest  comes  upon  the  express  invitation 
of  the  tenant.  In  regard  to  this  question,  Knowlton,  J.,  said :  "The 
contract  (for  the  safe  use  of  the  common  passageway)  impliedly  in- 
cluded not  only  the  tenant  himself,  but  the  members  of  his  family, 
and  his  servants  and  agents  who  might  rightfully  occupy  and  use 
the  tenement  with  him.  It  included  boarders  and  lodgers,  if,  in  a 
proper  use  of  the  tenement,  such  persons  might  be  received  there  by  the 
tenant.  It  included  all  persons,  who  in  connection  with  the  use  of 
the  tenement  by  the  tenant,  might  properly  pass  over  the  platform 
under  the  express  authority  of  the  tenant  and  in  his  riglit.  To  all 
such  persons,  by  virtue  of  her  contract  with  tlie  tenant,  the  landlord 
owed  the  same  duty  that  she  owed  to  the  tenant  personally,  to  keep 
the  platform  reasonably  safe."^®^ 

§  618.  Duty  of  landlord  to  strangers. — As  regards  strangers  there 
can  be  no  doubt,  on  either  principle  or  authority,  that  the  liability  of  a 
landlord  for  injuries  caused  by  the  negligent  maintenance  of  the 
portions  of  the  building  which  are  in  his  possession  cannot  be  in  any 
way  affected  by  the  fact  that  other  portions  of  it  have  been  leased  to 
and  are  in  possession  of  tenants.  When  a  building  consisting  of  a 
number  of  different  apartments  is  divided  among  several  tenants, 
each  one  of  whom  takes  a  distinct  portion  and  none  of  whom  rent 
the  entire  building,  each  tenant  is  responsible  only  for  so  much  as 
his  lease  includes,  leaving  the  landlord  liable  for  every  part  of  the 
building  not  included  in  the  actual  holding  of  any  one  tenant.-^* 
Thus  a  landlord  who  leases  the  several  parts  of  his  building  to  dif- 
ferent tenants,  and  who  retains  control  of  the  roof,  will  be  liable  for 

=^Poren  v.  Rodick,  90  Me.  276.  38  47   N.   E.   416.     Compare  McKenzie 

Atl.  175;    Readman  v.   Conway,   126  v.  Cheetham,  83  Me.  543,  22  Atl.  469. 

Mass.  374.  =^' Coupe   v.   Piatt,   172   Mass.   458, 

=^1  Learoyd  v.   Godfrey,  138   Mass,  52  N.  E.  526. 

315.  ==^  O'Connor  v.   Andrews,   81   Tex. 

»2  Ganley  v.  Hall,  168  Mass.  513,  28,  16  S.  W.  628. 


711  PREMISES  OCCUriED  BY  MORE  THAX  ONE  TENANT.         [§    619 

injuries  resulting  to  persons  passing  on  the  street  from  ice  and  snow 
sliding  upon  them  therefrom.^^^  This  same  principle  has  been  ap- 
plied where  injuries  to  third  persons  resulted  from  the  fall  of  side 
walls  f^^  where  an  awning  erected  along  the  whole  front  of  a  building 
for  the  benefit  of  shops  fell  and  caused  injuries  ;^'''^  and  where  a 
traveller  along  the  highway  in  front  of  the  premises  was  injured  by  a 
defective  coal  hole  in  the  sidewalk.^^^  The  shops  on  the  ground 
floor  of  a  building  were  rented  to  separate  tenants  and  were  con- 
nected with  the  sidewalk  by  a  wooden  platform  which  was  not  sep- 
arated into  parts.  A  defect  in  the  platform  caused  an  injury  to  a 
stranger  and  the  landlord  was  held  liable  in  the  absence  of  any  cove- 
nant by  the  tenant  to  repair.^^**  It  has  even  been  held  that  a  covenant 
by  one  of  several  tenants  to  save  the  lessor  harmless  from  any  claim 
or  damage  arising  from  neglect  in  not  removing  snow  and  ice  did 
not  release  the  landlord  from  liability.  The  injury  occurred  from  the 
collection  of  snow  and  ice  on  the  sidewalk  in  front  of  the  premises. 
The  effect  of  this  covenant  was  not  to  give  the  lessee  the  sole  oc- 
cupancy of  the  sidewalk  in  front  of  the  premises,  so  the  general  rule 
of  liability  where  parts  of  a  building  are  let  to  different  tenants  would 
apply,^"'' 

§619.    What  constitutes  a  fulfilment  of  the  landlord's  duty. — 

The  obligation  resting  on  the  landlord  is  the  same  as  that  resting  on 
the  general  owner  of  real  estate  who  holds  out  invitations  or  induce- 
ments to  other  persons  to  use  his  property.  The  duty  upon  such  an 
owner  is  that  reasonable  care  and  skill  have  been  exercised  to  render 
the  premises  reasonably  fit  for  the  uses  which  he  has  invited  others  to 
make  of  them.^°^  It  is  the  landlord's  duty  to  use  due  care  to  keep 
the  platforms  and  common  passageways  in  a  condition  as  good  as 
they  were  at  the  time  of  hiring,  and  to  inform  the  tenant  of  any  hid- 
den defect  which  could  not  be  discovered  by  reasonable  diligence  on 
his  part  and  of  which  the  tenant  for  his  proper  protection  ought  to 
be  informed.3°2    But  the  landlord  is  not  bound  to  change  the  mode  of 

^"■^  Shipley  v.  Fifty  Associates,  101  ^''^Readman  v.  Conway,  126  Mass. 

Mass.  251,  3  Am.  R.  346;    Kirby  v.  374. 

Boylston  &c.  Asso.,  14  Gray  (Mass.)  ^'X' Leydecker     v.     Brintnall,     158 

249,  74  Am.  Dec.  682.  Mass.  292,  33  N.  E.  399. 

^«  O'Connor  v.   Andrews,   81   Tex.  '"  Gillvon  v.  Reilly,  50  N.  J.  L.  26, 

28,  16  S.  W.  628.  11  Atl.  481. 

^"'Milford    V.    Holbrook,    9    Allen  ""^  Moynihan   v.    Allyn,    162    Mass. 

(Mass.)  17,  85  Am.  Dec.  735.  270,  38  N.  E.  497;  Quinn  v.  Perham, 

=«»  Jennings  V.  Van  Schaick,  108  N.  151  Mass.  162,  23  N.  E.  735;   Woods 

Y,  530,  15  N.  E.  424,  11  Cent.  R.  317,  v.  Naumkeag  &c.  Co.,  134  Mass.  357. 


§    620]  RIGHTS  AXD  LIABILITIES   OF   THE  PARTIES.  712 

construction  to  render  the  premises  safe.  Tlius  where  the  floor  of  a 
passage  was  composed  of  loose  rough  boards  at  the  time  of  hiring  and 
no  change  for  the  worse  had  occurred,  the  landlord  was  not  liable  to 
the  tenant  for  an  accident  caused  by  this  defect.  The  tenant  took  a 
tenement  with  a  poor  approach,  well  knowing  its  condition  and  there- 
fore cannot  complain  of  an  injury  caused  by  it.^"^  No  duty  is  imposed 
upon  the  landlord  in  respect  to  the  safe  use  of  the  means  of  passage 
provided  by  him.  If  those  means  are  such  as  the  rule  required  to  be 
provided  he  has  performed  his  duty.  If  a  stairway  is  fit  for  use  in 
ascending  and  descending,  the  responsibility  of  safely  using  it  is  upon 
the  person  using  it.  If  to  use  it  safely  at  night,  a  light  is  requisite, 
the  tenant  must  provide  it  and  not  the  landlord.  If  upon  the  failure 
of  natural  light  artificial  light  is  necessary  to  make  the  descent  of  a 
stairway  safe,  it  is  erroneous  to  place  the  duty  of  providing  such  a  light 
upon  the  landlord.^"*  So  there  is  no  obligation  on  the  part  of  the 
landlord  to  remove  ice  and  snow  from  the  steps  of  a  tenement  house. 
That  is  the  tenant's  duty  if  he  desired  to  use  the  steps.  The  ice 
and  snow  are  the  proximate  cause  of  an  injury.^"^^  But  these  prin- 
ciples were  held  not  to  apply  to  a  stairway  in  an  office  building,  con- 
structed around  a  well  which  became  unsafe  by  reason  of  darkness 
before  night  had  really  fallen.  The  landlord  had  control  of  the  halls 
and  starways  and  furnished  the  light  for  them.  The  court  held  that 
the  jury  were  justified  in  finding  under  such  circumstances  that  the 
landlord  owed  the  duty  of  providing  sufficient  light  to  render  the 
passageway  reasonably  safe  and  that  he  had  failed  in  that  duty.^°® 

§'620.  The  place  where  the  accident  occurs  is  not  material  pro- 
vided it  was  on  a  common  platform  or  passageway  which  the  -land- 
lord was  bound  to  keep  in  a  reasonably  safe  condition.  Thus  the 
landlord  was  held  to  be  answerable  for  a  defective  condition  in  a  stair- 
way intended  to  furnish  access  to  the  roof  of  a  shed,  used  in  common 
by  all  the  tenants  for  drying  clothes.^"^  He  was  also  responsible  for 
the  safety  of  slats  upon  the  roof  of  a  tenement,  used  for  a  similar  pur- 
pose.^*'^  But  it  seems  that  the  place  where  the  accident  happens  must 
have  been  intended  by  the  landlord  for  the  use  to  which  it  is  being 

^^Quinn    v.    Perham,    151    Mass.  ^"^  Marwedel    v.    Cook,    154    Mass. 

162,  23  N.  E.  735.  235,  28  N.  E.  140. 

"^  Gleason  v.  Boehm,  58  N.  J.   L.  '"'  Looney  v.  McLean,  129  Mass.  33, 

475,  34  Atl.  886.  37  Am.  R.  295;  Wilcox  v.  Zane,  167 

^0=  Woods  V.  Naumkeag  &c.  Co.,  134  Mass.  302,  45  N.  E.  923. 

Mass.  357.  =">' Alperin   v.    Earle,   55    Hun    (N. 

Y.)  211. 


713  PREMISES  OCCUPIED  BY  MORE  THAN  OXE  TENANT.         [§    G21 

put  to  make  him  liable.  So,  where  tenants  were  simply  given  permis- 
sion to  dry  clothes  on  the  roof,  the  landlord  was  under  no  obligation 
to  keep  it  in  repair.^"^  This  same  rule  has  been  held  in  Illinois  in  a 
case  with  facts  almost  identical  with  that  cf  Ivay  v.  Hedges.^'^^  The 
Illinois  court  argues  that  "there  was  no  express  contract  for  the  use 
of  the  roof ;  it  was  not  included  in  the  written  lease,  and  there  was  at 
most  so  far  as  the  evidence  discloses,  merely  a  verbal  permission  to 
the  particular  tenant  to  make  such  use  of  the  roof.  .  .  .  If  it  could 
be  regarded  as  a  part  of  the  premises  demised,  .  .  .  it  is  difficult  to 
perceive  how,  under  the  evidence  as  here  presented,  there  could  be  any 
obligation  on  the  part  of  the  landlord  to  keep  the  roof  in  repair."^^^ 

A  cellar  staircase  may  be  a  common  passageway  for  a  defect  in 
which  the  usual  responsibility  of  a  landlord  of  a  tenement  house 
would  attach.^12  j^  would  be  for  a  jury  to  determine  whether  a  plat- 
form in  front  of  leased  shops  and  bordering  on  a  highway  were  con- 
structed and  controlled  by  the  owner  of  all  the  shops,  for  the  common 
use  of  the  occupants  of  all  the  shops  and  of  the  public.  If  they  found 
this  to  be  the  case,  the  tenants  would  not  be  liable  for  defects  in  the 
platform,  but  the  responsibility  therefore  would  remain  on  the  land- 
lord,^i=^  The  landlord  is  not,  however,  bound  to  repair  platforms  and 
passageways  intended  for  the  exclusive  use  of  one  tenant  and  not  for 
common  use.^^* 

§  621.  Defective  carpeting  of  passageways.— The  landlord  of  a 
building  let  in  parcels  to  many  tenants  is  bound  to  keep  the  carpet- 
ings  and  matting  in  the  common  halls  and  stairways  in  proper  repair. 
Wear  and  tear  on  such  furnishing  is  to  be  expected  and  worn  places 
and  holes  making  the  passage  dangerous  can  easily  be  discovered  on 
inspection.  So  permitting  a  stairway  carpet  with  holes  in  it  to  remain 
on  the  stairs  of  a  tenement  house,  with  notice  of  its  condition,  ren- 
ders the  owners  liable  for  injuries  to  a  tenant  from  a  fall  caused  by 
catching  her  foot  in  one  of  the  holes.'^^  A  landlord  was  also  held  re- 
sponsible for  a  fall  received  by  reason  of  the  unsafe  condition  of  a 

2»»Ivay  v.  Hedges,  L.  R.  9  Q.  B.  D.         "*  Donner  v.  Ogilvie,  49  Hun   (N. 

Y.)    229,   232;    Flynn   v.   Hatton,   43 


80. 

""Ivay  v.  Hedges,  L.  R.  9  Q.  B.  D.  How.  Pr.   (N.  Y.)  333,  346. 

80.  '''  Peil  V.  Reinhart,  127  N.  Y.  381, 

«^  Culver  V.  Kingsley,  78  111.  App.  27    N.    E.    1077,    12    L.    R.    A.    843; 

540.  Palmer  v.  Bearing,  93  N.  Y.  7;  Gill- 

^"Robbins  v.  Atkins,  168  Mass.  45,  von  v.  Reilly,  50  N.  J.  L.  26,  11  Atl. 

46  N.  E.  425.  481,    10    Cent.    R.    428;     Henkel    v. 

'"Readman  v.  Conway,  126  Mass.  Murr,  31  Hun  (N.  Y.)   28,  30. 
374. 


§'§    622,    623]       EIGHTS   AND  LIABILITIES   OF   THE   PARTIES.  71-4 

mat  in  an  entrance  hall  of  an  apartment  house.^^®  The  question 
whether  the  tenant  has  been  guilty  of  contributory  negligence  is  to 
be  submitted  to  the  jury  in  view  of  all  the  circumstances  of  the  case. 
Where  the  landlord  had  promised  to  repair  the  defect,  and  the  plain- 
tifE  thought  he  had  done  so,  and  the  passageway  was  dimly  lighted,  so 
that  the  defect  was  not  visible,  a  finding  by  the  jury  that  there  was 
no  contributory  negligence  was  not  disturbed  by  the  court.^^"  Other 
important  inquiries  are  whether  the  defect  was  of  such  a  nature  as  to 
render  the  stairs  not  reasonably  fit  for  the  purpose  of  passage  and 
whether  the  landlord  has  failed  to  exercise  reasonable  care  in  the 
matter.^^^ 

§  622.  Repairs  interfering'  with  enjoyment. — A  landlord  may  be 
liable  to  tenants  of  one  floor  in  an  apartment  house  for  injury  done 
them  without  regard  to  his  negligence  in  making  alterations  and  re- 
pairs on  another  part.  Such  was  the  case  where  the  quiet  enjoyment 
of  the  tenant  was  interfered  with.  The  complaint  did  not  count  upon 
the  negligence  of  the  defendant  in  making  repairs,  but  was  founded 
on  the  theory  that  the  plaintiff  was  the  tenant  of  the  defendant  on  the 
two  upper  floors  of  the  building;  that  defendant,  as  owner  of  the 
building,  conducted  certain  alterations  and  improvements  on  the  sec- 
ond floor  by  tearing  down  partitions  and  walls  whereby  plaintiff  was 
damaged,  and  her  quiet  enjoyment  of  the  premises  as  a  tenant  was  in- 
terfered with.  The  landlord  is  bound  to  conduct  his  operations  so 
as  not  to  dispossess  or  render  uninhabitable  the  portion  of  the  building 
they  have  demised  to  others.  If  he  fails  of  this  duty,  he  is  liable 
to  his  tenants  irrespective  of  the  question  of  negligence.  As  against 
third  parties,  he  could  take  down  the  outer  or  inner  walls  at  will, 
subject  only  to  liability  for  injury  from  negligence,  but  as  against 
his  tenant  he  could  not  do  the  same  thing,  even  in  the  most  care- 
ful manner,  if  the  result  destroyed  the  quiet  enjoyment  of  such 
tenant.^^^ 

§  623.  Liability  of  landlord  for  negligence  of  janitor. — The  gen- 
eral rule  of  law  that  an  employer  is  responsible  for  injuries  caused 
by  the  negligence  of  his  servants  applies  in  the  case  of  a  janitor  em- 
ployed by  a  landlord.  There  is  nothing  in  the  relation  of  landlord 
and  tenant  which  would  relieve  the  landlord  from  liability.    Thus  a 

^"  Neyer  v.  Miller,  19  Jones  &  S.  ^"^  Gillvon  v.  Reilly,  50  N.  J.  L.  26, 
(N.  Y.)   516.  11  Atl.  487,  10  Cent.  R.  428. 

^'Palmer  v.  Bearing,  93  N.  Y.  7.         "« McDowell   v.    Hyman,   117    Cal. 

67,  48  Pac.  984. 


715  PREMISES  OCCUPIED  BY  MORE  THAX  OXE  TENANT.         [§    624 

sub-lessee  could  recover  from  the  landlord  for  the  misconduct  of  the 
janitor  of  the  building,  who  in  the  course  of  his  employment  let 
water  overflow  the  premises. ^^°  A  janitor  is  not,  however,  bound  to 
inquire  into  the  condition  of  water  pipes  in  parts  of  the  building 
which  are  under  lease.  He  has  a  right  to  assume  the  continuance  of 
previous  good  repair.  So  a  landlord  was  not  liable  wjiere  his  janitor 
turned  on  water  which  flooded  the  premises  throiigh  a  break  in  a  ten- 
ant's room.^2^ 

§  624.  A  tenant  of  a  part  of  a  building  is  bound  to  exercise  due 
care  in  the  use  and  control  of  his  part  of  the  premises  to  prevent  in- 
jury to  other  tenants  in  the  building  or  to  his  employes  or  business 
visitors.  The  ordinary  doctrine  of  responsibility  upon  an  occupier  of 
real  estate  is  not  altered  by  the  circumstance  that  the  premises  occu- 
pied consist  of  a  portion  of  a  building  only  and  that  there  may  be 
certain  duties  and  obligations  on  the  part  of  the  general  owner. 
Thus  the  occupant  of  an  upper  tenement  would  be  liable  for  the  negli- 
gence of  his  servant  in  leaving  a  faucet  open,  which  caused  water  to 
overflow  and  flood  the  tenement  below.^^^  Although  such  tenant  is 
not  bound  at  his  peril  absolutely  to  prevent  injury  to  others  by  the 
escape  of  water,^^^  he  is  liable  on  the  ground  that  he  has  been  negli- 
gent. Where  the  occupation  and  right  to  use  the  water  fixtures  are 
exclusive,  the  party  is  responsible  for  their  proper  use  and  care;  and 
liability  attaches  on  proof  that  negligence  has  occurred  and  damage 
has  ensued.  ^^* 

A  case  of  a  different  nature  arose  where  a  servant  of  a  tenant  was 
injured  by  a  defect  in  a  common  passageway  in  a  building  occupied 
by  many  tenants.  The  employer  was  held  liable.  It  was  contended  in 
behalf  of  the  defendants  that  as  they  were  tenants  in  the  building, 
with  control  over  only  a  portion  of  it,  there  being  other  tenants 
therein,  the  duty  to  keep  the  premises  in  safe  repair  was  upon  the 
owner  of  the  building  and  that  the  defendants  could  not  be  charged 
with  negligence  for  a  failure  in  that  respect.  But  the  court  replied 
that  the  principles  applicable  to  the  case  were  those  of  master  and 
servant  and  the  duty  the  master  owed  his  servant  to  provide  him  a 
safe  place  in  which  to  perform  his  labors.   The  master  cannot  absolve 

'^Pike  v.  Brittan,  71  Cal.  159,  11  '='' Losee    v.    Buchanan,    51    N.    Y. 

Pac.  890.  476,  486;    Swett  v.  Cutts,  50  N.   H. 

'^Greene   v.   Hague,   10   111.   App.  439;  Brown  v.  Collins,  53  N.  H.  442. 

598.  5=^  Moore  v.  Goedel,  34  N.  Y.  527, 

'^^Simonton  v.  Loring,  68  Me.  164,  532;  Slmonton  v.  Loring,  68  Me.  164, 

28  Am.  R.  29.  28  Am.  R.  29. 


§    625]  EIGHTS  AXD  LIABILITIES   OF   THE  PARTIES.  716 

himself  from  responsibility  in  his  behalf  by  showing  that  the  prem- 
ises furnished  by  him  were  rented  from  a  third  person  and  were 
jointly  occupied  by  him  with  other  tenants.  It  was  further  contended 
that  the  full  extent  of  the  defendant's  duty  was  to  warn  their  em- 
ploye of  the  danger.  The  court  did  not  assent  to  this,  but  disposed  of 
the  case  on  the  ground  that  even  if  a  warning  would  have  been  suf- 
ficient, there  had  been  none  in  the  present  case.^^^ 

V.    ResponsihiUty  for  Waste. 

§  625.    Waste  may  be  defined  to  be  any  act  or  omission  of  duty 
by  a  tenant  of  land  which  does  a  lasting  injury  to  the  freehold, 

tends  to  the  permanent  loss  of  the  owner  of  the  fee,  or  to  destroy 
or  lessen  the  value  of  an  inheritance,  or  to  destroy  the  identity  of  the 
property,  or  impair  the  evidence  of  title.^^®  It  is  lasting  damage  to 
the  inheritance  caused  by  the  destruction  by  a  tenant  for  life  or  years 
of  such  things  on  the  land  as  are  not  included  in  its  temporary 
profits.^^^  Permissive  waste,  as  the  name  implies,  consists  in  the  mere 
neglect  or  omission  to  do  what  will  prevent  injury,  as  to  suffer  a  house 
to  go  to  decay  for  lack  of  repair.  Voluntary  waste,  on  the  other 
hand,  consists  in  the  commission  of  some  destructive  act,  as  pulling 
down  a  house  or  cutting  down  timber.^-^  "At  common  law,  a  writ  of 
waste  lay  against  a  tenant  in  dower,  tenant  by  the  curtesy  and 
guardian  in  chivalry,  but  not  against  lessees  for  life  or  years.^^-^  The 
reason  for  this  diversity  was  that  the  estates  and  interests  of  the 
former  were  created  by  law,  and  therefore  the  law  gave  a  remedy 
against  them,  but  the  latter  came  in  by  the  act  of  the  owner,  who  might 
have  provided  in  his  demise  against  the  doing  of  waste  by  his  lessee, 
and  if  he  did  not  it  was  his  own  negligence  and  default.^ ^^  This  doc- 
trine was  found  extremely  inconvenient,  as  tenants  took  advantage 
of  the  ignorance  of  their  landlords  and  committed  acts  of  waste  with 
impunity.   To  remedy  this  inconvenience  the  statute  of  Marlbridge^^^ 

'==  Dieters  V.  St.  Paul  Gaslight  Co.,  Marsh.      (Ky.)      196;      Jackson     v. 

86  Minn.  474,  91  N.  W.  15.  Brownson,  7  Johns.  (N.  Y.)  227. 

^^'Bandlow  v.  Thieme,  53  Wis.  57,  ==*  Consolidated  Coal  Co.  v.  Savitz, 

9  N.  W.  920;   Melms  v.  Pabst  Brew-  57    111.    App.    659;     Bouvier's    Law 

ing  Co.,  104  Wis.  7,  79  N.  W.  738.  Diet.,  Art.  Waste;  White  v.  Wagner, 

'=^Proffitt    V.    Henderson,    29    Mo.  4  H.  &  J.  (Md.)  373,  391. 

325;    Childs  v.  Kansas   City  &c.   R.  ==='2  Inst.  299,  305;  Co.  Lit.  54. 

Co.    (Mo.),   17    S.   W.   954;    Sherrill  ^="2  Inst.  299;  Doct.  &  Stu.,  ch.  1, 

V.  Connor,  107  N.  Car.  630,  12  S.  E.  p.  102. 

588;    London   v.   Warfield,    5    J.    J.  "'^52  Hen.  Ill,  ch.  23. 


717  EESPOXSIBILITY    FOR    WASTE.  [§    G28 

was  passed.  But,  as  the  recompense  given  by  this  statute  was  fre- 
quently inadequate  to  the  loss  sustained,  the  statute  of  Gloucester^^^ 
increased  the  punishment  by  enacting  that  the  place  wasted  should 
be  recovered  together  with  treble  damages."^^^  At  common  law  the 
only  parties  liable  for  waste  were  tenants  of  legal  estates,  i.  e., 
estates  which  were  created  by  act  of  law  as  distinguished  from  those 
created  by  act  of  the  parties.  Prior  to  the  statutes  of  Marlbridge 
and  Gloucester,  when  a  limited  estate  was  created  by  deed,  the  par- 
ticular tenant  was  not  liable  for  waste  unless  it  was  expressly  so  stip- 
ulated.^^* Since  those  statutes  the  better  view  seems  to  be  that  ten- 
ants for  life  and  for  years  under  deeds  or  grants  are  liable  for  per- 
missive as  well  as  voluntary  waste.  In  the  earlier  English  reports 
instances  are  frequent  in  which  lessees  for  life  or  for  years  have  been 
held  liable  for  permissive  waste  and  their  liability  is  grounded  on  the 
statutes  which  subjected  them  to  the  action  of  waste.^^^  More  recent 
cases^^^  throw  some  doubt  on  this  conclusion,  but  they  are  not  re- 
garded as  settling  the  law  against  the  older  eases,  and  the  opinions  of 
Coke  and  Blackstone.^^'^  In  the  United  States,  unless  exempted  by  the 
terms  of  his  lease,  a  tenant  for  life  or  for  years  is  responsible  for 
waste  done  or  permitted  on  the  demised  premises.^^^ 

§  626.  With  respect  to  the  mode  of  procedure  by  which  a  tenant 
was  made  to  account  for  the  waste  committed  by  him,  the  writ  of 
waste  authorized  by  the  statute  fell  into  disuse  in  England  and  was 
finally  abolished  by  statute,^^'*  being  superceded  by  an  action  on  the 
case  in  the  nature  of  waste.^***  The  form  of  writs  in  this  action  are 
found  in  the  most  approved  books  of  precedents.^*^    It  has  been  de- 

=='6  Edw.  I,  ch.  5.  L.  284;    Davies  v.  Davies,  L.  R.  38 

^^  Moore  v.   Townshend,   33   N.   J.  Ch.  D.   499,  58   L.   T.   514,   57   L.  J. 

L.    284,    per    Depue,    J.;    Sackett   v.  Ch.  1093. 

Sackett,   8   Pick.    (Mass.)    309,   313;  ^^' White   v.    Wagner,    4    H.    &   J. 

Stetson  v.  Day,  51  Me.  434;  Lothrop  (Md.)    373;    Palmer   v.    Young,    108 

v.  Thayer,  138  Mass.  466;   Chase  v.  111.  App.  252;  Consolidated  Coal  Co. 

Hazelton,  7  N.  H.  171.  v.  Savitz,  57  111.  App.  659;    Stevens 

'^  Palmer  v.  Young,  108  111.  App.  v.  Rose,  69  Mich.  259,  37  N.  W.  205. 

252.  ^"3  and  4  William  IV,  ch.  27. 

"'=' Griffith's  Case,  Moore  69;  Darcy  ^«' Greene   v.   Cole,   3   Saund.   252, 

V.  Askwith,  Hobart  234;    Glover  v.  note    7;    Jefferson    v.    Jefferson,    3 

Pipe,  Owen   92;    2   Bl.   Comm.   283;  Lev.  131;  West  v.  Treude,  Cro.  Car. 

Co.  Litt.  52a,  53b.  187;    White  v.  Wagner,   4   H.   &  J. 

=^«  Gibson  v.  Wells,  4  B.  &  P.  290;  (Md.)  373. 

Heme    v.    Bembow,    4    Taunt.    764;  ="^3    Chitt.    Plead.    434;     8    Went. 

Torriano  v.  Young,  6  C.  &  P.  8.  Plead.   588;    Randall  v.  Cleaveland, 

^  Moore  v.   Townshend,  33  N.   J.  6  Conn.  328. 


§    626]  EIGHTS  AND  LIABILITIES  OF  THE   PARTIES.  718 

cided  that  case  in  the  nature  of  waste  will  lie,  although  the  tenant  has 
specially  covenanted  not  to  do  waste,^*^  and  that  this  action  may  be 
maintained  for  permissive  as  well  as  for  voluntary  waste.^*^  Case  in 
the  nature  of  waste  is  a  different  action  from  a  writ  of  waste,  being  a 
common-law  remedy,  attended  with  the  imposition  of  ordinary  dam- 
ages only,  and  is  not  possessory  in  its  character.  It  does  not  require 
that  the  defendant  should  be  charged  as  lessee  or  assignee,  or  that  the 
writ  should  conclude  by  stating  the  waste  to  have  been  to  the  disin- 
heriting of  the  plaintiff,  and  there  is  nothing  in  its  character  necessa- 
rily to  prevent  its  lying  against  a  stranger.  The  remedy  in  this  action 
is  co-extensive  with  the  liability  to  injury,  and  the  reversioner  has  a 
right  to  elect  against  whom  to  proceed.^^*  In  this  country,  although 
adopted  in  some  of  the  states,  the  action  of  waste  has  been  but  little 
used,  having  been,  in  practice,  virtually  superseded  by  the  action  on 
the  case  in  the  nature  of  waste  for  the  recovery  of  damages  merely,  or 
by  bill  in  equity,  praying  an  injunction  against  the  commission  of 
waste.^*^  Though  trespass  quare  clausum  may  be  maintained  by  the 
owner  for  an  injury  to  the  freehold,  when  it  is  in  the  occupation  of  a 
tenant  at  will,^*''  this  doctrine  is  not  to  be  extended  so  as  to  apply  to 
a  remainderman  who  is  not  entitled  to  possession.  It  has  been  held 
that  such  an  action  will  not  lie  by  the  reversioner  for  waste  commit- 
ted by  a  person  acting  under  authority  from  a  tenant  for  life.^*^ 
But  the  reversioner  or  remainderman  is  not  without  remedy,  when  the 
injury  is  of  a  permanent  nature  affecting  the  inheritance,  for  an  ac- 

^"Kinlyside  v.  Thornton,  2  W.  Bl.  waste,  but  not  as  to  the  penalty  of 

1111.  forfeiture.      Conditions    were    such 

^  White    v.    "Wagner,    4    H.    &    J.  that  the  stringent  rules  of  the  Eng- 

(Md.)  373;  Greene  v.  Cole,  3  Saund.  lish  law  relative  to  waste  were  not 

252,  note  7;    Pomfret  v.   Ricroft,  1  applicable.      So    damages    could    be 

Saund.  321.  recovered  but  forfeitures  could  not 

=«Chase  V.  Hazelton,  7  N.  H.  171;  be   enforced.     Woodward   v.    Gates, 

Mason  v.  Stiles,  21  Mo.  374;   Davis  38  Ga.  205.     I7i  Delaware  a  tenant 

V.    Smith,   15   Mo.   467;    Randall   v.  was  liable  to  indictment  under  the 

Cleaveland,  6  Conn.  328;  Jackson  v.  act  of   1831   for   cutting  timber,   if 

Pesked,  1  M.  &  S.  234;  Attersoll  v.  the  landlord's  consent  be  disproved. 

Stevens,  1  Taunt.  183.  State    v.    Jackson,    2    Harr.    (Del.) 

=»=  Randall  v.  Cleaveland,  6  Conn.  542. 

328;   Stevens  v.  Rose,  69  Mich.  259,  ^^''Bartlett  v.  Perkins,  13  Me.  87; 

37  N.  W.  205;   White  v.  Wagner,  4  Davis  v.  Nash,  32  Me.  411;  Kimball 

H.  &  J.  (Md.)  373;  Chase  v.  Hazel-  v.    Sumner,    62    Me.    305;    Starr   v. 

ton,  7  N.  H.  171;  Stetson  v.  Day,  51  Jackson,  11  Mass.  519. 

Me.  434.     In  Georgia  the  statute  of  ^'  Shattuck    v.    Gragg,    23    Pick. 

Gloucester  was  in  force  as  far  as  it  (Mass.)  88. 
made   a  tenant  in   dower   liable   in 


719  EESPOXSIBILITY    FOE    WASTE.  [§    627 

tion  would  lie  against  the  tenant,  either  on  the  case  or  for  waste,  or  an 
action  on  the  ease  would  lie  against  a  stranger.^*^ 

§  627.  At  common  law  and  under  the  early  English  statutes  a 
tenant  at  will  was  punishahle  for  voluntary  waste,  but  not  for  per- 
missive waste.^***  The  rule  has  been  declared  in  general  terms  that 
a  tenant,  no  matter  what  the  duration  of  his  term,  is  liable  to  his 
landlord  for  voluntary  or  commissive  waste.^^°  Tenants  in  dower,  by 
the  curtesy,  for  life  or  lives,  and  for  years,  were  included  in  the  stat- 
ute of  Gloucester.  Tenants  at  will  were  always  considered  as  omitted 
from  the  statute  of  Marlbridge,  as  well  as  from  the  statute  of  Glou- 
cester, and  therefore  continued  not  to  be  punishable  for  mere  per- 
missive waste,  and  punishable  for  voluntary  waste  by  action  of  tres- 
pass as  at  common  law.  The  reason  of  this  exemption  of  tenants  at 
will  from  liability  for  permissive  waste  was  the  uncertain  nature  of 
their  tenure,  which  would  make  it  a  hardship  to  compel  them  to  go 
to  any  expense  for  repairs.  Their  exemption  from  the  highly  remedial 
process  of  waste  provided  by  the  statute  of  Gloucester  is  attributable 
to  the  fact  that  the  owner  of  the  inheritance  might  at  any  time,  by 
entry,  determine  the  estate  of  the  tenant  and  thus  protect  the  inherit- 
ance from  spoil  or  destruction.^^^  If  a  tenant  at  will,  holding  from 
year  to  year,  commit  voluntary  waste,  he  forfeits  all  right  of  notice 
to  quit,  as  he  thereby  determines  this  estate  f^"^  for  waste  by  a  tenant 
at  will  has  the  effect  of  ending  the  tenancy  and  making  the  tenant  a 
trespasser.^^^  The  possession  of  a  tenant  at  will,  who  has  committed 
voluntary  waste,  may  be  considered  the  actual  possession  of  the  land-- 
lord,  who  may  thereafter  maintain  trespass  quare  clausum  against  liis 
former  tenant  at  will.^^*    Since  a  tenant  at  will  or  by  sufferance  is 

^  Lawry  v.  Lawry,  88  Me.  482,  34  ^^  Boefer  v.  Sheridan,  42  Mo.  App. 

Atl.    273;    Stetson    v.    Day,    51    Me.  226. 

434;    Shattuck   v.    Gragg,    23    Pick.  '"Moore  v.   Townshend,  33   N.  J. 

(Mass.)   88.  L.  284. 

^'Torriano  v.  Young,  6  C.  &  P.  8,  '"  Perry   v.   Carr,   44   N.    H.    118; 

25  E.  C.  L.  295;   Countess  of  Salop  Phillips    v.    Covert,    7    Johns.     (N. 

V.    Crompton,    Cro.    Eliz.    777,    784;  Y.)   1. 

Countess   of    Shrewsbury's    Case,    5  '°'  Pettingill  v.  Evans,  5  N.  H.  54. 

Coke    14;    Harnett   v.   Maitland,   16  '=^  Perry   v.    Carr,   44   N.   H.    118; 

M.  &  W.  258;   Moore  v.  Townshend,  Ripley    v.    Yale,    16    Vt.    257,    260; 

33  N.  J.  L.  284;   Coale  v.  Hannibal  Wickham  v.  Freeman,  12  Johns.  (N. 

&c.  R.   Co.,  60   Mo.  227;    Daniels  v.  Y.)  183;  Phillips  v.  Covert,  7  Johns. 

Pond,    21    Pick.     (Mass.)     367;     Lo-  (N.  Y.)  1;  French  v.  Fuller,  23  Pick, 

throp    V.    Thayer,    138    Mass.    466;  (Mass.)    104;    Starr  v.   Jackson,    11 

Boefer    v.    Sheridan,    42    Mo.    App.  Mass.    519;     Lienow    v.    Ritchie,    8 

226.  Pick.      (Mass.)      235;      Daniels     v. 


§'   628]  RIGHTS   AND  LIABILITIES   OF   THE  PARTIES.  720 

not  liable  to  his  landlord  for  permissive  waste,  as  where  the  demised 
premises  are  damaged  by  the  acts  of  a  stranger,  he  will  therefore  have 
no  action  against  the  stranger  who  causes  the  injury.^^^  But  tenants 
who  were  bound  to  answer  to  their  landlord  in  the  full  value  of  waste 
committed  have  been  held  to  be  entitled  to  recover  a  like  amount 
against  the  stranger  by  whose  act  the  waste  was  committed.^^® 

In  Maine  it  has  been  held  that  an  action  of  trespass  on  the  case  is 
maintainable  by  the  owners  of  the  fee  against  a  tenant  at  will  for  acts 
prejudicial  to  the  inheritance.^^''  But  the  authority  on  which  this  de- 
cision is  rested  merely  holds  that  case  is  the  proper  remedy  of  a  re- 
versioner out  of  possession  to  bring  against  a  stranger  who  does  an 
injury  to  the  inheritance.^^^ 

The  burning  of  a  building  through  the  negligent  keeping  of  a  fire 
by  a  tenant  is  generally  regarded  as  permissive  waste.^^^  So  if  land- 
lords would  protect  themselves  from  the  mere  negligence  of  their  ten- 
ants, they  should  take  a  written  lease  with  proper  covenants.  The 
reasonable  rule  is  that  a  tenant  at  will  is  not  liable  to  his  landlord  for 
the  mere  negligence  of  himself  or  his  servants  in  kindling  or  guard- 
ing fires  in  stoves  or  chimneys  for  the  purpose  of  heating  the  premises, 
but  that  he  is  liable  for  willful  burning  and  also  for  such  gross  negli- 
gence" as  amounts  to  reckless  conduct. ^**° 

A  tenant  in  possession  under  a  lease  giving  lessee  an  option  to  pur- 
chase, which  has  not  been  exercised  within  the  required  time,  is  liable 
for  waste  committed  on  the  premises  during  his  possession.^°^ 

§  628.  Independent  of  an  express  agreement  on  the  part  of  a 
lessee,  the  law  imposes  on  him  an  obligation  to  treat  the  premises  in 
such  a  way  that  no  substantial  injury  shall  be  done  to  the  property 

Pond,    21    Pick.    (Mass.)    367;    Lo-  287;    Gibbons  on  Dilapidations   (2d 

throp  v.  Thayer,  138  Mass.  466,  473;  ed.)   108,  128;   Comyn's  Ld.  &  Ten. 

Chalmers  v.   Smith,   152   Mass.   561,  171. 

26  N.  E.  95.  '^'Lothrop   v.    Thayer,   138    Mass. 

^'^^Coale   v.   Hannibal  &c.   R.   Co.,  466,  476.     See  also.  Read  v.  Penn- 

60  Mo.  227.  sylvania  R.  Co.,  44  N.  J.  L.  280.     In 

^°®  Austin  v.  Hudson  River  R.  Co.,  Schwartz  v.  Salter,  40  La.  Ann.  264, 

25   N.   Y.   334;    Cook  v.   Champlain  it  was  held  that  a  lessee  is  not  re- 

Transp.  Co.,  1  Denio  (N.  Y.)   91.  sponsible  for  losses  by  fire  that  are 

357  Piles  y,  Magoon,  41  Me.  104.  occasioned  without  his  fault  or  neg- 

^■^  Lienow     v.     Ritchie,     8     Pick,  lect,  when  the  local  statute  and  the 

(Mass.)  235.  instrument    under    which    he    holds 

^^^  Countess  of  Shrewsbury's  Case,  contain  a  provision  to  that  effect. 

5  Coke  14;  4  Kent.  Com.  81;  1  Add.  ^"Powell  v.  Dayton  &c.  R.  Co.,  16 

Cont.     (8th    ed.)     253;    Add.    Torts  Ore.  33,  16  Pac.  863. 
239;    Smith's  Ld.  &  Ten.    (3d  ed.) 


II 


721  RESPONSIBILITY    FOR    WASTE.  [§    628 

during  the  continuance  of  the  lease,  so  that  the  same  may  be  restored 
to  the  possession  of  the  owner  in  a  condition  unimpaired  by  the  negli- 
gent conduct  of  the  lessee.^®^  That  a  tenant  is  liable  for  negligence 
and  carelessness  in  the  management  of  the  leased  premises,  whereby 
damages  result  to  such  premises,  is  quite  clear  as  a  matter  of  law.^®^ 
As  a  general  proposition  of  law,  the  landlord  is  not  bound  to  repair 
during  a  term  without  a  special  agreement,  while  it  is  the  duty  of  the 
tenant  to  keep  the  premises  in  repair.^^*  There  is  an  implied  obli- 
gation arising  out  of  the  relation  of  landlord  and  tenant  that  the 
tenant  will  use  reasonable  care  to  prevent  damage  to  the  inherit- 
ance.^®^ Every  contract  whereby  the  relation  of  landlord  and  tenant 
is  created  contains  as  an  implied  part  of  it  an  obligation  to  use 
the  premises  in  a  tenantlike  manner,  unless  expressly  excluded.  Be- 
sides the  express  written  agreement  there  is  an  additional  burden  im- 
posed by  law;  but  it  is  all  parcel  of  the  original  contract,  by  which 
the  relation  of  landlord  and  tenant  was  created  between  the  parties.^®® 
The  lessee  is  not  bound  to  make  substantial,  lasting  or  general  repairs, 
but  only  such  ordinary  repairs  as  are  necessary  to  prevent  waste  and 
decay  of  the  premises.  ^^'^  "This  obligation  arises  from  the  mere  rela- 
tion of  landlord  and  tenant.  It  is  not  a  covenant  to  repair  generally, 
but  so  to  use  the  property  as  to  avoid  the  necessity  for  repairs,  as  far 
as  possible."^*^^  This  rule  that  a  lessee  is  liable  for  ordinary  repairs, 
also  holds  true  of  a  tenant  from  year  to  year  in  the  absence  of  agree- 
ment or  statute.^*'^  But  the  doctrine  in  regard  to  a  tenant  at  will  is 
that  he  is  not  liable  to  his  landlord  for  permissive  waste  by  neglect  to 
make  proper  repairs.^^^   A  tenant  from  year  to  year  is  only  bound  to 

^*^  Genau  v.  District  of  Columbia,  '°^  Snydam   v.   Jackson,   54   N.   Y. 

20  Ct.  CI.  389;   Carlin  v.  Ritter,  68  450;    Long  v.  Fltzimmons,  1  W.  & 

Md.  478,  482,  6  Am.  St.  467;  Snydam  S.    (Pa.)    530;    Bold  v.   O'Brien,   12 

V.  Jackson,  54  N.  Y.  450.  Daly     (N.     Y.)     160;     Johnson     v. 

«^  Wright  v.  Tileston,  60  Minn.  34,  Dixon,  1  Daly   (N.  Y.)   178;   Payne 

61  N.  W.  823.  V.   James,   45   La.   Ann.   381,   12    So. 

=••"  Kellenberger    v.    Foresman,    13  492;    Prosser  v.  Pretzel    (Kan.),  55 

Ind.  475;  Moffatt  v.  Smith,  4  N.  Y.  Pac.  854.     See   John  Morris  Co.  v. 

126;    Russell  v.   Rush,   2    Pittsb.   R.  Southworth,   154   111.   118,   39   N.   E. 

(Pa.)  134;  Hitner  v.  Ege,  23  Pa.  St.  1099,  reversing  50  111.  App.  429. 

305.  ^"^  Brown  v.  Crump,  1  Marsh.  567. 

^"^Nave    V.    Berry,    22    Ala.    382;  Quoted    in    United    States   v.    Bost- 

Warder  v.   Henry,  117   Mo.   530,  23  wick,  94  U.  S.  53,  and  Williams  v. 

S.  W.  776;   Hughes  v.  Vanstone,  24  Kearny   Co.,   61   Kan.   708,   60    Pac. 

Mo.     App.     637;     Kellenberger     v,  1046. 

Foresman,  13  Ind.  475.  ""'  Hitner  v.  Ege,  23  Pa.  St.  305. 

^»  Holford  V.  Dunnett,  7  M.  &  W.  '•"  Parrott  v.   Barney,   Deady   405, 

348,  352.  18  Fed.  Cas.  No.  10773a. 

Jones  L.  &  T.— 46 


§    639]  EIGHTS  AND  LIABILITIES   OF  THE  PARTIES.  723 

keep  the  demised  house  wind  and  water  tight,  and  that  is  all  he  is 
bound  to  do.  A  tenant  who  covenants  to  repair  is  to  sustain  and  up- 
hold the  premises,  but  that  is  not  the  case  with  a  tenant  from  year  to 
year.^^^  Although  a  lessee  from  year  to  year  is  not  liable  to  general 
repairs,^'^^  a  tenant  at  will  as  well  as  a  tenant  for  life  or  for  years  is 
under  an  implied  agreement  to  use  the  premises  in  a  tenantlike  man- 
ner, and  not  by  his  voluntary  act  unnecessarily  to  injure  them.  While 
this  agreement  does  not  include  an  obligation  on  the  part  of  a  tenant 
at  will  to  repair  defects  resulting  from  the  action  of  the  elements,  or 
from  a  reasonable  use  of  the  premises,  or  from  an  unavoidable  acci- 
dent, it  creates  a  liability  to  an  action  of  contract  for  a  wrongful  act 
in  violation  of  it.^"  The  acceptance  of  rent  for  the  full  term  is  not 
necessarily  a  waiver  of  a  right  to  recover  damages  for  breach  of  such 
a  contract,  but  merely  evidence  of  a  waiver,  although  it  may  be  a 
waiver  of  a  right  to  bring  trespass  quare  clausum.^'''^ 

In  Vermont  it  has  been  held  that  a  landlord  may  recover  in  as- 
sumpsit damages  caused  to  the  leased  premises  by  the  negligence  of 
his  tenant  for  a  fixed  term,  even  though  there  are  no  convenants  in 
the  lease.^^^ 

§  629.  A  tenant  is  only  bound  to  make  tenantable  repairs,  and  is 
not  liable  for  the  ordinary  "wear  and  tear"  of  the  premises,  such  as 
are  incident  to  the  reasonable  use  and  occupation  of  the  same.  The 
tenantable  repairs  which  the  law  imposes  on  the  tenant,  in  the  absence 
of  an  undertaking  on  his  part  to  repair,  are  such  repairs  as  are  re- 
quired in  the  reasonable  use  and  occupation  of  the  premises,  such  as 
keeping  fences  in  order,  replacing  windows  and  doors  broken  during 
the  pendency  of  the  lease.^^^  jf  ^  demised  building  should  fall  because 
it  was  too  weak  to  endure  an  apparently  legitimate  use,  it  could  not 
be  said  that  the  injury  was  inflicted  by  a  tenant.  If  the  building  fell 
in  consequence  of  its  own  defects,  the  loss  would  be  from  ordinary 

'"Auworth  v.  Johnson,  5  C.  &  P.  "^Wilcox  v.  Gate,  65  Vt.   478,  26 

239,  24  E.  C.  L.  545.  Atl.  1105. 

="  Horsefall  v.  Mather,  Holt.  7.  ^*  Genau  v.  District  of  Columbia, 

s^' Chalmers   v.   Smith,   152   Mass.  20  Ct.  CI.  389;  Hughes  v.  Vanstone, 

561,  26   N.  E.  95;    Holford  v.  Dun-  24   Mo.   App.   637;    Long  v.   Fitzim- 

nett,  7  M.  &  W.  348;   United  States  mons,  1  W.  &  S.   (Pa.)   530;  Daven- 

v.  Bostwick,  94  U.  S.  53,  66;  1  Add.  port    v.    United    States,    26    Ct.    CI. 

Contr.  (8th  ed.)  383.  338;    Hoyleman  v.  Kanawha  &c.  R. 

^*  Chalmers   v.   Smith,   152   Mass.  Co.,  33  W.  Va.  489;  Kellenberger  v. 

561,  26  N.  E.  95.  Foresman,  13  Ind.  475. 


i 


i 


723  RESPONSIBILITY    FOE    WASTE.  [§    630 

wear  and  tear.^"  A  tenant  is  not  absolutely  liable  for  the  occurrence 
of  a  permanent  injury  to  the  demised  premises  over  and  above  ordi- 
nary wear  and  tear.  Such  injury  must  be  shown  to  be  caused  by  some 
wrongful  act  or  negligence  of  the  defendant  before  he  can  be  made  to 
respond  in  damages.^"^  The  ordinary  care  and  attention  which  is  usu- 
ally required  of  millers  operating  leased  mills  would  be  cleaning  and 
dressing  the  stones,  adjusting  and  regulating  the  machinery,  cleaning 
the  race  of  such  deposits  or  accretions  as  would  follow  the  use  of  the 
mill,  and  such  other  similar  acts  which  demand  the  miller's  skill,  yet 
which  require  neither  the  expenditure  of  money  nor  the  consumption 
of  much  time  or  labor.^^^  It  would  be  the  tenant's  duty  to  remove 
temporary  or  accidental  obstructions  from  drains,  spouts,  water  pipes 
and  the  like,  and  to  keep  the  premises  in  as  good  order  as  he  received 
them,  whether  stipulated  for  in  the  lease  or  not.^^"  Ordinary  repairs 
must  be  paid  for  by  the  tenant  unless  he  covenants  otherwise,  but 
extraordinary  repairs  ought  to  be  paid  for  by  the  landlord.^®^ 

If  it  does  not  appear  that  the  want  of  repair  is  causing  an  immedi- 
ate injury  to  the  estate,  a  life  tenant  could  properly  delay  a  reasonable 
time  to  make  the  repairs,  in  order  that  they  may  be  made  at  such 
reasonable  expense  as  the  nature  of  the  repairs  and  the  condition  of 
the  estate  would  reasonably  require.  The  tenant  cannot  be  held  to  a 
more  rigid  rule  in  respect  to  the  estate  than  would  be  observed  by  a 
prudent  man  of  his  own  estate  absolutely.^ *^ 

§  630.  Where  the  lessees  in  a  lease  of  real  property  have  ex- 
pressly covenanted  to  repair,  the  express  covenant  takes  the  place  of 
the  implied  covenant  and  becomes  the  measure  of  the  tenant's  lia- 
bility.^^ ^  Though  acts  of  a  tenant  are  tortious  in  their  nature,  they 
may  also  be  breaches  of  his  contract  with  his  landlord  for  which  the 
tenant  will  be  responsible  in  an  action  ex  contractu. '^^^  Where  lessees 
contracted  "to  take  good  care  of  the  leased  building,  and  guard  par- 
ticularly against  fire  and  waste,"  they  could  be  sued  in  contract  for 
injuries  for  which  they, would  otherwise  be  liable  in  tort.  But  a  tenant 

^"Machen  v.  Hooper,  73  Md.  342,  (Pa.)    276;    Hitner   v.   Ege,    23    Pa. 

21    Atl.    67;    Hess   v.    Newcomer,    7  St.  305. 

Md.  325.  2^=  Harvey  v.   Harvey,   41   Vt.   373. 

"'  Sheer    v.    Fisher,    27    111.    App.  ^^^  California     &c.     Co.     v.     Arm- 

464.  strong,  17  Fed.  216,  8  Sawy.  (U.  S.) 

"'"Stultz  V.  Locke.  47  Md.  562.  523. 

^^0  Russell   V.    Rush,    2    Pittsb.    R.  ^^^  Carter  v.  George,  30  Kan.  45,  1 

(Pa.)  134.  Pac.  58. 

'"  Scheerer  v.  Dickson,  3  Brewst. 


§'   631]  EIGHTS   AXD  LIABILITIES   OF  THE  PARTIES.  724 

for  years,  being  liable  for  permissive  waste,  would  also  be  liable  in  an 
action  sounding  in  tort  for  injuries  to  the  inheritance,  although  he 
were  bound  by  express  covenants  to  repair.^^^  An  action  may  be  one 
of  tort  purely,  although  the  existence  of  a  contract  may  have  been 
the  occasion  or  furnished  the  opportunity  for  committing  the  tort.^**' 
It  would  be  sufficient  to  allege  the  making  of  a  lease,  the  entry  of  the 
lessee,  the  good  condition  of  the  premises,  and  the  injury  caused  by 
the  bad  management  of  the  lessee.  Such  a  cause  of  action  is  one 
sounding  in  tort  and  not  in  contract.^^^ 

A  lease  in  the  terms  "to  have  and  to  hold  and  to  use  and  control  as 
the  lessee  thinks  proper  for  his  benefit  during  his  natural  life''  is 
equivalent  to  a  leasing  without  impeachment  of  waste.  A  clause  with- 
out impeachment  of  waste  does  not  operate  as  a  license  to  destroy 
the  estate  or  to  commit  malicious  waste,  such  as  cutting  down  fruit 
or  shade  trees ;  but  it  enables  the  tenant  to  cut  wood  and  open  mines. 
The  real  intention  of  such  a  clause  is  to  enable  the  tenant  to  do  many 
things  which  would  otherwise  amount  to  waste.  These  words  do  not 
operate  as  a  license  to  the  tenant  to  destroy  the  estate  or  to  commit 
.malicious  waste.^^® 

§  631.  On  a  demise  of  farming  lands  a  covenant  is  raised  by  oper- 
ation of  law  that  they  shall  be  used  as  such  and  cultivated  in  a  hus- 
bandlike manner;  that  no  waste  shall  be  committed  and  that  the  soil 
shall  not  be  exhausted  by  negligent  or  improper  tillage.^*^  The  bare 
relation  of  landlord  and  tenant  is  a  sufficient  consideration  to  oblige 
the  tenant  to  farm  in  a  good  and  husbandlike  manner,  according  to 
the  custom  of  the  country.^^°  But  the  distinction  must  be  noticed 
between  waste  and  bad  husbandry.  "It  is  not  waste  at  common  law,"' 
observes  Baron  Parke,  "either  wilful  or  permissive,  to  leave  the  land 
uncultivated.  In  order  to  oblige  him  to  farm  according  to  good  hus- 
bandry, you  must  have  either  some  express  contract,  or  some  implied 
contract  from  the  custom  of  the  eountry."^^^  In  Vermont  a  landlord 
can  maintain  assumpsit  for  the  failure  of  his  tenant  on  the  shares  to 

»*'' Moore  v.  Townshend,  33   N.  J.  Chapel  v.  Hull,  60  Mich.  167,  26  N. 

L.  284.  W.  874;   Conrad  v.  Morehead,  89  N. 

^^^Whittaker  v.  Collins,  34  Minn.  Car.  31. 

299,  25  N.  W.  632.  ^^  Powley  v.   Walker,    5   Term   R. 

='"  Wright  v.  Tileston,  60  Minn.  34,  373;    Hallifax  v.  Chambers,  4  M.  & 

61  N.  W.  823.  W.  662;  Westropp  v.  EUigott,  L.  R. 

'^'  Stevens  v.  Rose,  69  Mich.  259,  9  App.  Cas.  815,  823. 

37  N.  W.  205.  '"  Hutton  v.  Warren,   1    M.   &  W. 

^Walker  v.  Tucker,  70   111.  527;  466,  476. 


725  RESPONSIBILITY    FOR    WASTE.  [§    631 

conduct  the  leased  farm  in  a  Imsbandlike  manner.^^-  In  that  state  it 
is  also  settled  that  an  action  of  account  is  the  proper  remedy  for  the 
adjustment  of  controversies  growing  out  of  the  common  mode  of 
leasing  farms  for  a  share  of  the  products  and  profits.^^^  To  avoid 
being  guilty  of  waste,  the  tenant  of  a  farm  is  bound  to  keep  fences 
in  good  repair,  and  he  is  responsible  for  all  damage  caused  by  his 
failure  to  do  so.^^*  It  has  been  declared  that  the  law  requires  a  tenant 
to  make  ordinary  repairs  to  buildings,  to  repair  and  keep  up  fences, 
and  to  remove  and  keep  down  filth  growing  on  farming  and  grazing 
lands  at  his  own  expense,  unless  otherwise  provided  in  the  lease.^''^ 

According  to  the  law  of  England,  if  an  ancient  meadow  which  has 
been  meadow  time  out  of  memory,  as  brook  meadow,  is  converted  into 
arable  land,  this  is  waste.^^®  Proof  that  land  has  been  meadow  so  far 
as  memory  extends  not  to  the  contrary  is  conclusive  evidence  of  its 
being  ancient  meadow,  in  the  absence  of  earlier  evidence  still.  In  the 
IJnited  States,  the  jDrinciple  of  the  common  law  under  consideration 
was  not  applicable  at  the  time  of  settlement,  and  has  not  been  ap- 
plicable at  any  time  since ;  for  it  has  been  the  constant  usage  of  farm- 
ers to  break  up  their  grass  lands  for  the  purpose  of  raising  crops  by 
tillage -and  laying  them  down  to  grass  again.^^^  So  it  may  be  laid 
down  as  a  general  rule  in  this  country  that  plowing  up  meadow  land 
and  planting  a  grain  crop,^^*  or  converting  meadow  land  into  pasture 
land,^"''  is  not  waste  when  such  a  course  is  natural  and  would  not  be 
injurious  to  the  reversion.  But  where  a  tenant  starts  in  to  plow  up  all 
the  meadow  land  on  the  farm,  which  will  seriously  injure  it  and  de- 
stroy its  rental  value,  the  landlord  can  have  him  enjoined  from  com- 
mitting such  waste.*"" 

The  destruction  of  ornamental  trees,  fences  and  walls,  and  the 
quarrying  and  removal  of  stone  and  gravel,  is  voluntary  waste.*"^ 
Digging  up  and  carrying  away  fruit  trees  also  constitutes  the  same 
kind  of  waste.*"^    So  it  has  been  held  that  barking  and  plowing  up 

'==  Reynolds  v.  Chynoweth,  68  Vt.  «°^  Pynchon   v.    Stearns,    11    Mete. 

104,  34  Atl.  36.  (Mass.)  304,  45  Am.  Dec.  207. 

^'^La  Point  v.  Scott,  36  Vt.  603.  ^^  bubble  v.  Cole,  85  Va.  87,  7  S. 

=»*  Andrews  v.  Jones,  36  Tex.  149;  E.  242. 

Fenton  v.  Montgomery,  19  Mo.  App.  ^"°  Clemence  v.  Steere,  1  R.  I.  272. 

156;    Hoyleman  v.  Kanawha  &c.  R.  ^»°  Chapel    v.    Hull,    60    Mich.    167, 

Co.,  33  W.  Va.  489.  26  N.  W.  874. 

'°=Windon  v.   Stewart,   43  W.  Va.  «'' United    States   v.    Bostwick,    94 

711,  28  S.  E.  776.  U.  S.  53. 

=™  Tresham  v.  Lamb,  2  Rolle  Abr.  *°-  Bellows  v.  McGinnis,  17  Ind.  64. 
814;   Darcy  v.  Askwith,  Hobart  234; 
Atkins  v.  Temple,  1  Rep.  in  ch.  14. 


I 


§    632]  RIGHTS  AXD  LIABILITIES   OF   THE   PARTIES.  726 

young  apple  trees  by  cultivating  a  crop  among  them  is  not  ordinary 
"wear  and  tear"  of  a  farm  rented  for  a  year.^°^  To  permit  stock  to 
go  into  an  orchard  and  destroy  fruit  trees  is  a  want  of  reasonable 
care,  and  constitutes  waste  on  the  part  of  a  tenant.'*'**  The  same  is 
true  of  the  act  of  a  tenant  in  turning  hogs  into  a  meadow,  whereby 
it  is  rooted  up  and  injured.*"^  On  a  demise  of  farming  lands  the 
lessee  covenanted  that  he  would  "generally  improve  the  property." 
This  general  improvement,  by  a  fair  construction,  referred  to  the 
treatment  of  the  lands  in  their  use  for  agricultural  purposes.  The 
mode  of  cultivation,  the  proper  and  sufficient  use  of  manures  in  en- 
riching the  land,  and  matters  of  that  sort,  are  within  the  meaning  of 
such  a  stipulation.  To  hold  it  to  relate  to  improvements  of  any  other 
character  would  leave  the  obligations  of  the  tenant  under  it  un- 
bounded. Such  a  construction  cannot  properly  be  contended  for.*"^ 

§  632.  A  tenant,  whether  rightfully  in  possession  or  not,  cannot, 
without  the  consent  of  the  landlord,  make  material  changes  or  alter- 
ations in  a  building  to  suit  his  taste  or  convenience,  and,  if  he  does, 
■  it  is  waste.  The  law  is  undoubtedly  so  settled.  Any  material  change  in 
the  nature  or  character  of  the  buildings  made  by  the  tenant  is  waste, 
although  the  value  of  the  property  should  be  enhanced  by  the  altera- 
tion.*"'^ A  tenant  cannot,  under  the  pretense  of  advantage  to  the 
reversioner,  change  the  nature  of  buildings,  and  such  changes,  though 
beneficial,  would  be  waste.*"^  The  American  cases  have  modified  the 
law  of  waste  in  regard  to  farming  lands  to  adapt  it  to  the  circum- 
stances of  a  new  and  growing  country,  in  order  to  encourage  the  ten- 
ant for  life  in  making  a  reasonable  use  of  wild  and  undeveloped 
land.*"^  But  it  has  been  declared  that  there  can  be  no  pretense  of  a 
modification  in  the  rule  against  waste  in  the  case  of  tearing  down 
houses  or  taking  away  inner  walls  or  partitions.  It  would  be  difficult 
to  set  any  limits  to  such   acts  by  judicial   decisions.    Where  such 

"'  Thompson     v.     Cummings,     39  Klie  v.  Von  Broock,  56  N.  J.  Eq.  18, 

Mo.  App.  537.  37  Atl.  469. 

*"^  Warder  v.  Henry,  117  Mo.  530,  *'>^  Jackson   v.   Andrew,   18   Johns. 

23  S.  W.  776.  (N.    Y.)     431,    434;     M'Cullough    v. 

'"=  Bellows  v.  McGinnis,  17  Ind.  64.  Irvine,  13  Pa.  St.  438;  Doe  v.  Jones, 

*»«Naye  v.  Noezel,  50  N.  J.  L.  523,  4   B.   &  Ad.   126;    Agate   v.   Lowen- 

14  Atl.  750.  bein,  57  N.  Y.  604. 

"'Brock  v.  Dole,  66  Wis.  142,  28  *»»  Hastings      v.      Crunckleton,      3 

N.    W.    334;    Kidd    v.    Dennison,    6  Yeates  (Pa.)  261;  Findlay  v.  Smith, 

Barb.    (N.   Y.)    9,   13;    Douglass   v.  6    Munf.    (Va.)    134;    Ballentine   v. 

Wiggins,  1  Johns.  Ch.   (N.  Y.)   435;  Poyner,    2    Hayw.    (N.    Car.)     110; 

Irwin  v.  Covode,  224  Pa.  St.  162. 


727  RESPONSIBILITY    FOE   WASTE.  [§632 

changes  are  desired  they  should  be  left  to  the  agreement  of  the  par- 
ties.*^" In  the  eases  which  are  supposed  to  illustrate  this  modifica- 
tion, a  permission  by  the  owner  to  the  tenant  to  alter  and  change  the 
building  is  either  found  in  the  terms  of  the  demise  or  is  to  be  im- 
plied from  the  circumstances  of  the  case.*^^  If  by  the  terms  of  his 
lease  it  appears  that  additions  and  improvements  were  to  be  made  by 
the  lessee,  no  action  of  waste  can  be  sustained  against  him,  although 
he  make  such  alterations  as  at  common  law  would  have  been  waste.*^^ 
A  covenant  on  the  part  of  a  lessee  to  keep  repaired  such  improvements 
as  he  should  make  creates  an  implied  contract  on  the  part  of  the 
lessor  that  such  improvements  might  be  made,  although  they  would 
be  waste  at  common  law.*^^  Where  a  lease  authorized  a  lessee  to  make 
inside  alterations,  provided  he  did  not  injure  the  premises,  it  was 
held  to  be  a  question  of  fact  to  be  submitted  to  the  jury  whether  the 
taking  down  of  partitions  did  not  injure  the  premises.*^*  The  reason 
for  this  is  that  such  expressions  do  not  relieve  the  tenant  from  lia- 
bility for  voluntary  waste,  and  the  acts  of  the  tenant  must  be  to  the 
permanent  improvement  of  the  estate,  and  such  as  a  prudent  owner 
would  do.*^^  A  covenant  by  a  lessee  to  make  no  strip  or  waste  would 
not  be  inconsistent  with  a  permission  to  him  to  make  improvements ; 
a  covenant  of  this  kind  would  restrain  the  tenant  from  injuring  the 
premises,  but  would  not  preclude  him  from  making  such  alterations 
in  the  demised  premises  as  might  be  for  their  interest  and  benefit, 
although  they  might  come  within  the  strict  legal  definition  of  waste."*' 
The  rise  in  value  of  land  during  the  holding  of  the  tenant  cannot 
be  taken  into  account  in  determining  whether  the  act  of  the  tenant 
injures  the  inheritance.  It  is  waste  for  a  tenant  for  life  to  tear  down 
a  building,  although  the  estate,  without  the  building,  is  more  valuable 
intrinsically  than  it  was  at  the  beginning  of  the  life  estate,  because  of 
a  general  rise  in  values.*^^  A  mere  intention  to  erect  a  better  struc- 
ture will  not  prevent  the  tearing  down  of  a  building  from  being 
waste.*^^   A  stipulation  in  a  lease  allowing  alterations  to  adapt  build- 

"*  Agate   v.   Lowenbein,   57   N.  Y.  The     reductio    ad     absurdam     sug- 

604;   Klie  v.  Von  Broock,  56  N.   J.  gested   in   Garth   v.   Cotton,    1   Ves. 

Eq.  18,  37  Atl.  469.  Sr.    524,    1    Dick.    123,    that    tenant 

*"Klie   V.   Von   Broock,   56   N.   J.  might  commit  waste   if  it  did   not 

Eq.  18,  37  Atl.  469.  amount   to    waste   has    been    disap- 

"2  Hasty  V.  Wheeler,  12  Me.  434;  proved. 

Doe  V.  Jones,  4  B.  &  Ad.  126.  "°  Hasty  v.  Wheeler,   12  Me.   434. 

*"  Doe  V.  Jones,  4  B.  &  Ad.  126.  *"  M'Cullough  v.  Irvine,  13  Pa.  St. 

*"  Agate  V.   Lowenbein,   57  N.  Y.  438. 

604.  "*  Dooly    v.    Stringham,    4    Utah 

*">  Vincent  v.  Spicer,  22  Beav.  880.  107,  7  Pac.  405. 


I 


§    633]  EIGHTS  AXD  LIABILITIES   OF  THE  PARTIES.  728 

ings  on  land  for  other  purposes  than  that  of  livery  stable  does  not 
confer  a  right  to  tear  down  and  destroy  such  building,  even  though  a 
better  or  more  expensive  one  be  erected  in  its  place.* ^^  A  tenant  has 
no  right  to  pull  down  a  building/ ^'^  even  though  the  structure  is  in 
such  a  state  of  dilapidation  that  it  is  beyond  repair.  But  he  may 
protect  himself  by  tearing  it  down  when  it  is  so  ruinous  as  to  be  liable 
to  fall  and  cause  injury.*^^ 

§  633.  The  cases  in  this  country  relied  on  to  show  an  amelioration 
of  the  strict  English  rule  are  Jackson  v,  Tibbits/-^  and  Winship  v. 
Pitts.* 2^  In  the  former  case  the  waste  was  the  cutting  a  door  between 
two  rooms  in  the  second  story,  and  putting  a  window  in  the  door  of 
a  cellar.  These  changes  were  beneficial  to  the  premises.  The  judge, 
at  the  trial,  charged  that  this  was  waste  and  worked  a  forfeiture,  but 
a  new  trial  was  granted  on  the  ground  that  the  whole  premises  were 
not  forfeited,  but  only  the  part  wasted,  and,  further,  that  there  was 
proof  from  which  the  jury  might  infer  a  waiver.  In  the  second  case 
a  tenant  of  a  lot  which  had  vacant  land  in  the  rear  proposed  to  erect 
a  stable  there,  and  the  landlord,  owning  other  land  in  the  neighbor- 
hood, filed  a  bill  for  an  injunction.  The  chancellor  held  that  the  mere 
erection  of  a  stable  on  vacant  land  was  not  waste.  It  never  has  been 
waste  for  a  tenant  to  erect  a  new  edifice  on  vacant  land.*^*  A  Massa- 
chusetts case  has  gone  further  and  adopted  the  doctrine  that  the 
changes  and  alterations  attendant  upon  the  development  of  land  near 
a  city  for  residential  purposes  is  not  waste  if  the  land  is  thereby  in- 
creased in  value.  So  there  was  declared  to  be  no  authority  for  holding 
that  the  opening  of  a  new  street  by  a  tenant  and  draining  land  were 
acts  of  waste.  If  breaking  up  meadow  land  occasionally  was  a  judi- 
cious and  suitable  mode  of  husbandry,  the  changing  the  surface  by 
breaking  up  and  cultivating  it  was  not  waste ;  removing  soil  for  the 
building  of  houses  and  erecting  them,  and  digging  drains,  if  the  estate 
on  the  whole  would  be  equally  or  more  valuable  to  the  owners  of  the 
inheritance,  would  not  be  waste.*^^ 

The  effect  of  changing  conditions  was  illustrated  in  a  striking  way 

""Davenport  v.  Magoon,  13  Ore.  3.  Eq.  18,  37  Atl.  469;  Hubble  v.  Cole, 

*="  Cannon  v.  Barry,  59  Miss.  289.  85  Va.  87,  7  S.  E.  242;   Pynchon  v. 

^^^Clemence  v.  Steere,  1  R.  I.  272.  Stearns,    11    Mete.    (Mass.)    304,    45 

*==- Jackson    v.    Tibbets,    3    Wend.  Am.   Dec.  207;    Winship  v.   Pitts,  3 

(N.  Y.)  341.  Paige    (N.  Y.)    259,   262;    Bac.  Abr. 

*=^  Winship   v.   Pitts,    3   Paige    (N.  Waste,  ch.  5. 

Y.)   259.       ^  '-''  Pynchon    v.    Stearns,    11    Mete. 

***Klie   v.   Von   Broock,    56    N.    J.  (Mass.)   304;   45  Am.  Dec.  207. 


729  RESPONSIBILITY    FOR    WASTE.  [§'   634 

in  a  case  arising  in  Wisconsin.  Advancing  business  and  manufactur- 
ing interests  surrounded  a  once  elegant  mansion,  until  it  stood  iso- 
lated and  alone,  standing  upon  just  enough  ground  to  support  it,  and 
surrounded  by  factories  and  railway  tracks,  absolutely  undesirable 
as  a  residence  and  incapable  of  any  use  as  business  property.  Such  a 
complete  change  of  conditions,  not  produced  by  the  tenant,  but  re- 
sulting from  causes  which  none  could  control,  could  not  be  ignored, 
and  the  ironclad  rule  could  not  be  applied  that  a  tenant  can  make  no 
change  in  the  uses  of  the  property  because  he  will  destroy  its  identity. 
The  tenant  was  not  required  to  stand  by  and  preserve  the  useless 
dwelling  house.  The  court  restricts  the  scope  of  this  decision,  and 
says  that  it  is  not  to  be  construed  as  justifying  a  tenant  in  making 
substantial  changes  in  the  leasehold  property,  or  the  buildings  thereon, 
to  suit  his  own  whim  or  convenience,  because  he  may  be  able  to  show 
that  the  change  is  in  some  degree  beneficial.  Under  all  ordinary  cir- 
cumstances, the  landlord  or  reversioner  is  entitled  to  receive  the  prop- 
erty at  the  close  of  the  tenancy  in  substantially  the  condition  in  which 
it  was  when  the  tenant  received  it,  but  after  a  complete  and  perma- 
nent change  of  surrounding  conditions,  the  question  whether  a  life 
tenant  has  been  guilty  of  waste  in  making  changes  necessary  to  make 
the  property  useful  is  a  question  of  fact  for  the  jury.*^*' 

Furthermore,  changed  economic  conditions  have  been  held  to  re- 
lease a  life  tenant  of  farming  land  from  his  obligation  to  repair,  when 
the  structures  which  were  suffered  to  decay  were  not  suited  for  use 
under  changed  conditions.  The  rule  has  been  stated  to  be  that  where 
a  prudent  owner  of  the  fee  would  have  suffered  the  barn  or  other 
building,  unsuitable  because  of  its  great  proportions  to  his  wants  un- 
der the  new  state  of  society  since  the  abolition  of  slavery,  to  have 
fallen  into  decay  rather  than  incur  the  cost  of  repair,  then  the  tenant 
would  not  be  liable  for  permissive  waste.  *^'^ 

§  634.  The  intent  or  motive  with  which  a  tenant  acts  is  imma- 
terial in  determining  what  constitutes  waste.  A  tenant  for  life  can- 
not pull  down  buildings,  cut  off  timber  trees,  or  do  other  acts  which 
tend  to  the  disherison  of  the  remainderman  or  reversioner,  and  justify 
them  on  the  ground  that  he  acted  in  good  faith,  without  any  pur- 
pose of  permanently  injuring  the  estate.  Such  acts,  in  law,  constitute 
waste,  for  which  the  tenant  for  life  is  liable,  however  innocent  or 

*^  Melms  v.  Pabst  Brewing  Co.,  *=^  Sherrill  v.  Connor,  107  N.  Car. 
104  Wis.  7,  79  N.  W.  738.  630,  12  S.  E.  588. 


§    635]  EIGHTS  AXD  LIABILITIES   OF  THE   PARTIES.  730 

honest  may  have  been  the  purpose  with  which  they  were  done.*^* 
Where  a  statute  declared  it  criminal  in  a  tenant  during  his  term  to 
wilfully  and  unlawfully  injure  or  damage  the  leased  house,  and  the 
tenant  removed  from  the  house  certain  window  sashes  which  he  had 
placed  in  them,  under  a  claim  that  they  belonged  to  him,  it  was  held 
that  it  did  not  come  within  the  meaning  of  the  statute,*^^  A  tenant 
who,  as  a  wilful  wrong-doer,  commits  waste  by  removing  a  building 
is  chargeable  to  the  reversioner  with  the  highest  probable  or  specu- 
lative value  of  such  building.*^" 

§  635.  A  tenant  for  life  or  for  years  who  cuts  standing  timber 
for  the  purpose  of  sale,  and  not  merely  for  necessary  estovers  or  for 
reasonable  clearing  for  cultivation,  is  guilty  of  waste  according  to 
the  common-law  rule.^^^  This  rule  has  been  applied,  even  though  the 
tenant  has  a  right  to  cut  firewood  and  firewood  is  taken  in  exchange, 
because  firewood  might  have  been  secured  directly,  without  resorting 
to  the  cutting  of  timber  trees.*^-  So  it  has  been  held  to  be  objection- 
able for  a  tenant  to  cut  timber  to  burn  bricks  which  have  been  made 
for  the  purpose  of  sale.*^^  An  exception  to  the  general  rule  allows 
the  tenant  to  exchange  timber  cut  on  the  leasehold  premises  for  lum- 
ber with  which  to  make  necessary  repairs  when  that  seems  to  be  the 
most  economical  mode  of  making  the  repairs.*^* 

An  authority  to  clear  land  for  cultivation  does  not,  according  to  an 
Alabama  decision,  give  the  tenant  a  right  to  make  merchandise  of  the 
timber  taken  from  the  parts  cleared,  nor  does  an  authority  to  use 
land  and  take  care  of  it  confer  such  a  power.*^^ 

A  tenant  for  life  or  for  years  of  a  farm  has  a  right  to  cut  wood  in 
reasonable  quantities  for  fires  and  repairs.*^®    It  is  not  required  or 

*^«  Clark      V.      Holden,      7      Gray  Towne,    10    Mass.    303;    Conner    v. 

(Mass.)    8.  Shepherd,  15  Mass.  164. 

'"'  State  V.   Whitener,   93   N.   Car.  "=  Padelford  v.  Padelford,  7  Pick. 

590.  (Mass.)  152. 

""Tate  V.  Field,  57  N.  J.  Eq.  53,  ^=' Livingston     v.      Reynolds,     26 

40  Atl.  206.  Wend.  (N.  Y.)  115. 

"1  Warren    County    v.     Gans,     80.  ^'*  Loomis  v.  Wilbur,  5  Mason  (U. 

Miss.  76,   31   So.   539;    Padelford  v.  S.)    13;    Sarles  v.   Sarles,   3   Sandf. 

Padelford,    7    Pick.     (Mass.)     152;  Ch.   (N.  Y.)   601;   Miller  v.  Shields, 

Kidd  V.  Dennison,  6  Barb.    (N.  Y.)  55  Ind.  71. 

9;  Proffitt  V.  Henderson.  29  Mo.  325;  «»Ladd  v.   Shattock,  90  Ala.  134, 

Davis    V.    Gillian,    5    Ired.    Eq.    (N.  7  So.  764. 

Car.)  308;  Clemence  v.  Steere,  1  R.  "*"  Hubbard     v.     Shaw,     12     Allen 

I.  272;    Loudon  v.  Warfleld,  5  J.  J.  (Mass.)     120;    Calvert    v.    Rice,    91 

Marsh.      (Ky.)      196:      Sargent     v.  Ky.  533,  34  Am.  St.  240;  Loudon  v. 


II 


731  KESPOXSIBILITY    FOR    WASTE.  [§    635 

expected  of  the  tenant  that  he  shall  expend  his  money  in  buying  plank 
or  lumber  to  improve  fences  and  keep  the  premises  in  repair,  so  that 
the  timber  may  pass  from  him  to  the  inheritance  untouched,  although 
its  judicious  use  may  lessen  the  value  of  the  estate.  The  owner  of  the 
fee  would  use  the  timber.  He  would  not  cut  trees  in  a  yard  left  for 
ornamental  purposes,  nor  could  the  tenant,  without  being  guilty  of 
waste;  but  ordinary  woodland  can  be  used  in  a  prudent  manner  for 
the  benefit  of  the  premises.*^ ^  But  to  make  improvements  which  it  is 
not  the  duty  of  the  tenant  to  make,  he  may  not  commit  waste  upon 
the  inheritance  by  cutting  timber,  and  justify  it  on  the  ground  that 
the  benefit  compensates  the  damage.*^''®  Thus,  where  a  building  is 
destroyed  by  act  of  God,  the  tenant  has  no  right  to  take  timber  from 
the  estate,  to  its  injury,  to  rebuild,  on  the  ground  of  its  compensating 
the  injury  by  equal  benefit,  because  this  would  be  allowing  the  tenant 
to  force  the  reversioner  to  submit  to  the  judgment  and  will  of  the  ten- 
ant in  a  matter  touching  his  estate  which  might  not  be  in  accordance 
with  his  own.*^^ 

Although  it  is  ordinarily  implied  that  every  tenant  of  a  farm  is  en- 
titled to  wood  necessary  for  fuel  and  for  repairs  on  fences  and  build- 
ings, where  a  tenant  covenants  to  keep  in  repair  he  must  supply  his 
own  materials  for  use  in  making  repairs.**"  The  profitable  enjoyment 
of  the  land  is  not  the  proper  criterion  to  determine  the  question  of 
waste.  There  may  be  waste  where  there  is  such  profitable  enjoyment, 
and  there  may  be  profitable  enjoyment  without  waste.  The  cutting  of 
timber  may  be  necessary  to  the  profitable  enjoyment  of  the  land  ac- 
cording to  the  tenant's  standard  of  profit,  and  yet  be  a  great  outrage 
upon  the  rights  of  the  reversioner.  If  land  is  valuable  for  the  timber 
upon  it  alone,  it  would  surely  be  waste  for  a  tenant  to  cut  and  carry 
away  all  the  timber  of  any  value ;  in  that  case  the  tenant  must  respect 
the  rights  of  the  owner  of  the  inheritance.**^  If  a  tenant  for  life  by 
right  of  dower  permitted  a  pasture  to  become  woodland,  bearing  a 
growth  fit  for  timber,  and  it  was  de  facto  such  woodland  when  the 
wood  and  timber  were  cut,  such  cutting  was  waste,  in  the  same  man- 

Warfield,  5  J.  J.  Marsh.   (Ky.)  196;  Clarke   v.   Cummings,   5    Barb.    (N. 

Miles  V.  Miles,  32  N.  H.  147,  64  Am.  Y.)    339;    Sohier    v.    Eldredge,    103 

Dec.   362;    Walters  v.   Hutchins,   29  Mass.  345,  351;   Smith  v.  Jewett,  40 

Ind.    136;    Alexander   v.    Fisher,    7  N.  H.  530. 

Ala.  514;  Miller  v.  Shields,  55  Ind.  ""Miller  v.  Shields,  55  Ind.  71. 

71.  «» Harris  v.  Goslin,  3  Harr.  (Del.) 

*"  Calvert  v.  Rice,  91  Ky.  533,  34  340. 

Am.  St.  240.  ^Proffitt    v.    Henderson,    29    Mo. 

«' Miller   v.   Shields,    55    Ind.   71;  325. 


§'   636]  EIGHTS  AXD  LIABILITIES   OF  THE  PARTIES,  733 

ner  and  to  the  same  extent  as  it  would  have  been  had  it  been  woodland 
of  the  same  description  when  it  was  set  off  to  her  as  dower.  It  was 
wood  and  timber  land  when  the  timber  was  cut ;  it  was  held  by  a  ten- 
ant for  life ;  and  therefore  cutting  timber  and  other  wood  for  purposes 
other  than  the  use  of  the  estate  for  timber  and  fuel,  by  tenant  for 
life  was  waste.  The  tenant  in  dower  had  no  right,  after  the  land  had 
become  covered  with  a  growth  of  wood  and  timber  by  her  permission, 
to  cut  it,  beyond  the  amount  required  for  the  estate  itself,  even  though 
it  might  have  been  good  husbandry  in  an  owner  in  fee  thus  to  take  off 
the  wood  and  timber,  clear  up  the  land  and  thus  again  bring  it  under 
cultivation.**^ 

An  action  of  trover  or  replevin  will  lie  at  the  suit  of  a  landlord 
against  his  tenant,  pending  the  tenancy,  for  wood  into  which  trees 
wrongfully  severed  from  the  demised  premises  by  the  tenant  have  been 
converted.**^  The  tenant's  possession  of  the  land  entitles  him  to  the 
possession  of  all  that  is  attached  to  it  so  as  to  constitute  a  part  of  the 
freehold — as  trees — so  long  as  they  remain  so  attached  and  continue 
to  be  a  part  of  the  freehold ;  but  he  has  no  title  to  trees  and  can  assert 
no  adverse  claim  to  them  against  his  landlord.  The  title  to  them,  as 
to  the  land,  remains  in  the  landlord.  When  they  are  severed  from  the 
freehold  they  cease  to  be  a  part  of  the  thing  leased  by  the  tenant; 
they  are  no  longer  a  part  of  the  realty.  To  show  title  to  the  person- 
alty in  such  case  involves  no  inquiry  into  the  title  of  the  land  from 
which  the  severance  has  been  made,  and  no  inquiry  as  to  the  right  of 
possession  of  the  land.  The  plaintiff  is  not  required  to  say  he  had 
title  to  the  land,  and  the  defendant  is  not  allowed  to  say  that  the 
plaintiff  has  no  title ;  that  issue  cannot  be  made ;  the  relation  of  land- 
lord and  tenant  entirely  eliminates  it.*** 

§•  636.  Where  wild  timber  land  is  leased  for  fanning,  the  parties 
are  presumed  to  intend  that  the  lessee  should  be  at  liberty  to  cut  part 
of  the  timber  to  fit  the  land  for  cultivation.**^    In  the  United  States 

"2  Clark      V.      Holden,      7      Gray  556,    18    Am.    Dec.    748;    Mooers    v. 

(Mass.)    8;   McGregor  v.  Brown,  10  Wait,  3  Wend.   (N.  Y.)   104,  20  Am. 

N.  Y.  114.  Dec.  667. 

*«  Brooks  V.  Rogers,  101  Ala.  Ill,        ^"Brooks  v.  Rogers,  101  Ala.  Ill, 

13  So.  386;  Street  v.  Nelson,  80  Ala.  13  So.  386. 

230;    Harlan  v.   Harlan,  15   Pa.   St.        **"  Ballentine  v.   Poyner,   2   Hayw. 

507,    513;    Anderson    v.    Hapler,    34  (N.  Car.)    110;    Ward  v.   Sheppard, 

111.   436;    Congregational   Society  v.  2    Hayw.    (N.    Car.)    283;    King    v. 

Fleming,    11    Iowa    533;    Dorsey    v.  Miller,  99  N.  Car.  583,  6  S.  E.  660; 

Moore,  100  N.  Car.  44,  6  S.  E.  270;  Chase    v.    Hazelton,    7    N.    H.    171; 

Farrant  v.   Thompson,   5   B.  &  Aid.  9;    Jackson  v.    Brownson,   7   Johns. 

826;    Truss   v.   Old,   6   Rand.    (Va.)  (N.  Y.)  227,  233;  Mooers  v.  Wait,  3 


733  RESPONSIBILITY    FOR    WASTE.  [§    636 

the  cutting  of  timber  in  order  to  clear  up  wild  land  and  fit  it  for  cul- 
tivation, if  consonant  with  the  rules  of  good  husbandry,  is  not  waste, 
although  such  acts  would  clearly  be  waste  in  England.**''  So  it  has 
been  held  that  a  tenant  in  dower  may  clear  woodland  assigned  to  her 
in  dower,  provided  she  does  not  exceed  a  Just  proportion  of  the  whole 
tract.**'^  The  timber  thus  cut  for  the  purpose  of  clearing  may  be  sold 
without  rendering  the  tenant  liable  for  waste.**^  A  life  tenant  of 
wild  timber  lands  has  a  right  to  sell  enough  timber  to  pay  taxes  and 
the  expenses  of  protecting  the  property.**^  For  the  purpose  of  redeem- 
ing land  sold  for  taxes,  and  of  subsequently  keeping  down  the  taxes, 
a  life  tenant  will  be  permitted  to  fell  timber  in  such  quantities  and 
at  such  places  as  do  not  seriously  impair  the  value  of  the  inher- 
itance.*^" It  naturally  follows  that  to  cut  decaying  trees,  in  order  to 
give  younger  trees  a  chance  to  grow,  has  been  held  not  to  be  waste.*^^ 
Whether  or  not  the  cutting  of  timber  upon  the  premises  by  the  tenant 
for  life  be  waste  will  depend  on  the  custom  of  farmers,  the  situation 
of  the  country,  and  the  value  of  the  timber.*^-  It  has  been  declared 
that  the  cutting  down  of  timber  is  not  waste  unless  it  does  a  lasting 
damage  to  the  inheritance  and  deteriorates  its  value ;  and  not  then  if 
no  more  is  cut  down  than  was  necessary  for  the  ordinary  enjoyment 
of  the  land  by  the  tenant  for  life.*^^  In  determining  what  extent  of 
clearing  land  amounts  to  waste,  regard  must  be  had  to  the  condition 
of  the  premises,  and  the  inquiry  should  be,  were  the  acts  of  felling 
trees  such  as  a  judicious,  prudent  owner  of  the  inheritance  would  have 
committed;*^*  and  it  is  for  the  jury  to  determine  how  much  may  be 
cut  before  the  tenant  is  guilty  of  exceeding  such  a  limit. ^^^ 

Wend.  (N.  Y.)  104,  107;  Jackson  v.  (N.  Car.)    308;   Keeler  v.  Eastman, 

Andrew,  18  Johns.   (N.  Y.)   431.  11  Vt.  293. 

^"McNichol  V.  Eaton,  77  Me.  246;  "'Crockett  v.  Crockett,  2  Ohio  St. 

Drown  v.   Smith,   52  Me.   141;    Wil-  180. 

kinson   v.   Wilkinson,    59    Wis.   557,  «» Cannon  v.  Barry,  59  Miss.  289. 

18  N.  W.  527;  Melms  v.  Pabst  Brew-  *"  Keeler  v.  Eastman,  11  Vt.  293; 

Ing  Co.,  104  Wis.  7,  79  N.  W.  738;  Sayers   v.    Hoskinson,    110    Pa.    St. 

Cannon  v.  Barry,  59  Miss.  289;  Lam-  478,  1  Atl.  308. 

beth   V.   Warner,   2   Jones   Eq.    (N.  ^'=  M'Cullough  v.  Irvine,  13  Pa.  St. 

Car.)    165;    King   v.    Miller,   99    N.  438. 

Car.   583,   6  S.  E.   660;    Crockett  v.  *"  Shine  v.   Wilcox,   1   Dev.   &   B. 

Crockett,  2  Ohio  St.  180.  Eq.    (N.    Car.)    631;    Ballentine    v. 

"'Hastings     v.     Crunckleton,     3  Poyner,  2  Hayw.  (N.  Car.)   110. 

Yeates    (Pa.)    261;    Lynn's   Appeal,  «*  Woodward  v.  Gates,  38  Ga.  205. 

7   Casey    (Pa.)    44;    Sayers  v.   Hos-  ''=  Chase  v.  Hazelton,  7  N.  H.  171; 

kinson,  110  Pa.  St.  473,  1  Atl.  308;  Kidd  v.  Dennison,  6  Barb.    (N.  Y.) 

Alexander  v.  Fisher,  7  Ala.  514.  9;    Jackson  v.   Brownson,   7   Johns. 

"^  Davis    V.    Gilliam,    5    Ired.   Eq.  (N.  Y.)  227,233;  Mooers  v.  Wait,  3 


I 


637] 


EIGHTS  AND  LIABILITIES   OF   THE  PARTIES. 


734 


§  637.  It  is  the  duty  of  a  tenant  for  life  to  cause  all  taxes  as- 
sessed against  his  estate  during  the  tenancy  to  be  paid,  and  if  he  neg- 
lects this  duty,  thereby  subjecting  the  estate  to  sale,  an  action  at  law 
for  waste  may  be  maintained  against  him.*^''  Where  there  is  no  cove- 
nant or  provision  to  the  contrary,  a  life  tenant  must  keep  down  all 
charges  upon  the  property  necessary  to  preserve  it  for  the  remainder- 
man.*^^ The  act  of  a  life  tenant  in  permitting  a  large  part  of  his 
estate  to  be  forfeited  for  unpaid  taxes  is  voluntary  waste.  That  the 
land  forfeited  was  unproductive  woodland,  that  there  remained  be- 
longing to  the  estate  sufficient  wood  to  supply  its  wants  indefinitely, 
that  the  land  had  been  overvalued  by  the  assessor,  and  that  the  life 
tenant  had  tried  in  vain  to  have  the  valuation  reduced,  and  that  the 
tax  was  illegal,  afforded  no  excuse.  The  life  tenant  took  the  estate  as 
a  whole,  and  was  bound  so  to  preserve  it.  He  could  not  segregate  the 
profitable  from  the  unprofitable,  nor  the  sterile  from  the  fertile,  by 
preserving  the  one  at  the  sacrifice  of  the  other.  The  taxes  were  his 
individual  debt.*^«  A  tenant  for  life  is  required  to  keep  the  building 
in  which  he  may  have  a  life  estate  from  going  into  decay  by  using 
ordinary  care;  but  he  is  not  required  to  expend  any  extraordinary 
sums.*^^  The  obligations  of  an  equitable  tenant  for  life  as  to  keeping 
buildings  in  repair  are  substantially  the  same  as  those  of  a  legal  life 
tenant.*''"  But  although  these  obligations  are  imposed  upon  the  life 
tenant,  yet  he  cannot  make  improvements  at  the  expense  of  the  re- 
mainderman, whether  necessary  or  not.*"  By  the  strict  rules  of  tbe  old 
common  law,  a  tenant  for  life  subject  to  waste  could  not  open  a  new 
mine,  and  if  he  did  so  he  would  be  guilty  of  waste.*"  ^   But  he  could 


Wend.  (N.  Y.)  104,  107;  Jackson  v. 
Andrew,  18  Johns.  (N.  Y.)  431; 
Drown  v.  Smith,  52  Me.  141. 

""Stetson  v.  Day,  51  Me.  434;  Mc- 
Millan v.  Robbins,  5  Ohio  28;  Var- 
ney  v.  Stevens,  22  Me.  331;  Pretty- 
man  v.  Walston,  34  111.  175,  192; 
Phelan  v.  Boylan,  25  Wis.  679; 
Parish  v.  Camplin,  139  Ind.  1,  15, 
37  N.  E.  607;  Crentz  v.  Heil,  89  Ky. 
429,  12  S.  W.  926;  Cannon  v.  Barry, 
59  Miss.  289;  Carter  v.  Youngs,  42 
N.  Y.  Super.  Ct.  418. 

*"  Hart  V.  Hart,  117  Wis.  639,  653, 
94  N.  W.  890;  Phelan  v.  Boylan,  25 
Wis.  679. 

«« Cannon  v.  Barry,  59  Miss.  289. 

«» Wilson   v.   Edmonds,   24    N.    H. 


517;  Parish  v.  Camplin,  139  Ind.  1, 
15,  37  N.  E.  607;  Miller  v.  Shields, 
55  Ind.  71;  Carter  v.  Youngs,  42 
N.  Y.  Super.  Ct.  418;  Co.  Litt.  53a, 
b;  2  Black.  Com.  281. 

^'"'  Schulting  v.  Schulting,  41  N.  J. 
Eq.  130,  3  Atl.  526;  Combes  v.  Cad- 
mus, 36  N.  J.  Eq.  382,  s.  c.  37  N.  J. 
Eq.   264. 

«i  Parish  v.  Camplin,  139  Ind.  1, 
15,  37  N.  E.  607;  Miller  v.  Shields, 
55  Ind.  71;  Clark  v.  Middlesworth, 
82  Ind.  240. 

«»2  Whitfield  v.  Bewit,  2  P.  Wil- 
liams 240;  Hook  v.  The  Garfield 
Coal  Co.,  112  Iowa  210,  83  N.  W. 
963;  Williamson  v.  Jones,  43  W. 
Va.  562,  27  S.  E.  411. 


735  EESPONSIBILITY    FOR    WASTE.  [§    638 

operate  open  ones  existing  at  the  commencement  of  the  life  estate,*®^ 
even  to  the  point  of  exhaustion,  without  making  himself  responsible 
to  the  owner  of  the  reversion.*^*  And  if  the  mines  have  been  opened 
before  the  tenant's  estate  began,  he  can  enlarge  them  and  operate 
them,  even  though  they  had  been  abandoned.**'^ 

§  638.  When  waste  is  threatened  an  Injunction  to  prevent  it  is 
the  proper  remedy.'*'"'  But  an  injunction  will  not  lie  for  waste  already 
committed  when  no  further  waste  is  threatened.*^'^  Nor  will  equity 
interfere  to  oust  a  tenant  from  year  to  year  because  he  is  a  bad  man- 
ager and  insolvent.**'^  A  lessor  may,  by  injunction,  prevent  his  lessee 
from  converting  the  demised  premises  to  uses  inconsistent  with  the 
terms  of  the  lease,  and  from  making  material  alterations,  and  com- 
mitting other  kinds  of  waste.*"^  A  court  of  equity  has  power  to  pro- 
tect a  reversioner  against  waste  by  a  tenant  in  possession.  But  it  will 
not  interfere  unless  it  is  shown  that  a  positive  injury  to  the  premises, 
repugnant  to  the  terms  of  the  lease,  or  their  conversion  to  uses  un- 
authorized is  contemplated  and  reasonably  apprehended.*''"  Thus  a 
court  of  equity  restrained  a  tenant  under  a  perpetual  lease  from  tear- 
ing down  a  building  on  the  premises  where  such  removal  would  impair 
the  security  for  rent ;  but  so  long  as  the  rent  is  not  rendered  insecure, 
the  right  of  the  tenant  to  alter,  remodel  and  reconstruct  at  his  own 
pleasure  ought  not  to  be  interfered  with,*"^  In  modern  equity  prac- 
tice an  injunction  to  restrain  waste  will  be  granted  in  many  instances 
where  no  legal  action  could  be  maintained,  although  the  interest  of 
the  injured  party  is  legal,  and  also  where  the  estate  of  the  injured 
party  is  entirely  equitable.  An  injunction  may  also  be  granted  to  re- 
strain threatened  waste,  although  none  has  been  committed.  The 
common-law  remedies  for  waste  were  insufficient    for,  among  other 

*«^  Saunders'     Case,     5     Coke     12;  271;  Brock  v.  Dole,  66  Wis.  142,  28 

Astry  v.  Ballard,  2  Lev.  185.  N.  W.  334. 

^'^  Williamson  v.  Jones,  43  W.  Va.  '"  Crockett  v.  Crockett,  2  Ohio  St. 

562,  27  S.  E.  411;  Sayers  v.  Hoskin-  180.     See   also.   Smith  v.   Cooke,    3 

son,    110    Pa.    St.    473,    1    Atl.    308;  Atk.  378,  381. 

Neel  v.  Neel,  19  Pa.  St.  323;  Lynn's  ^"^  Blain  v.  Everitt,  36  Md.  73. 

Appeal,  31  Pa.  St.  44.     Contra,  Hill  ^•''Douglass  v.  Wiggins,   1   Johns. 

v.  Taylor,  22  Cal.  191.  Ch.   (N.  Y.)   435;   Maddox  v.  White, 

'•^Gaines  v.  Green  Pond  &c.  Co.,  4    Md.    72;    Barret    v.    Blagrave,    5 

33  N.  J.  Eq.  603.  Ves.  555;  Klie  v.  Von  Broock,  56  N. 

«=°  Dooley    v.    Stringham,    4    Utah  J.  Eq.  18,  37  Atl.  469. 

107,  7  Pac.  405;  Loudon  v.  Warfield,  "'"McDaniel  v.  Callan,  75  Ala.  327. 

5   J.   J.   Marsh.    (Ky.)    196;    United  "'Crowe  v.  Wilson,  65  Md.  479,  5 

States  v.  Parrott,  1  McAll.   (U.  S.)  Atl.  427. 


§    639]  RIGHTS  AND  LIABILITIES   OF  THE  PARTIES.  736 

reasons,  they  did  not  stop  the  injury  that  was  going  on ;  hence  courts 
of  equity  interposed  by  injunction  to  restrain  the  defendant  from  con- 
tinuing to  commit  waste ;  and  its  remedy  has  been  found  so  simple  and 
so  effective  that  it  has  to  a  great  extent  superseded  the  common-law 
action.'*^ 2  It  is  not  ordinarily  necessary  to  the  issuing  an  injunction 
restraining  waste  that  the  party  in  possession  should  be  shown  to  be 
insolvent.*^^  It  has  been  declared  to  be  the  rule  that  courts  of  equity 
will  take  no  jurisdiction  of  permissive  waste  by  a  life  tenant,  because 
their  constant  interference  in  such  matters  would  render  the  enjoy- 
ment of  the  life  estate  impossible.*^''  Yet,  where  the  neglect  and 
omissions  of  the  lessees  to  perform  their  obligations  under  a  lease 
resulted  in  waste,  which,  if  permitted  to  continue,  must  eventually 
result  in  the  ruin  and  destruction  of  its  subject-matter,  to  the  irre- 
parable damage  of  the  lessor,  a  court  of  equity  did  interfere  and  can- 
celed the  lease  to  prevent  such  waste  and  destruction.'*^^ 

In  ordinary  cases,  the  account  for  waste  already  committed  is  merely 
incidental  to  the  relief  by  injunction  against  future  waste,  and  is 
directed  upon  the  principle  of  preventing  a  needless  multiplication  of 
suits ;  it  is  not  in  itself  a  substantive  ground  of  equitable  relief,  as  the 
remedy  at  law  is  adequate.*^® 

§  639.  Forfeiture  of  the  place  wasted  and  treble  damages  were 
the  punitive  measures  provided  by  the  statute  of  Gloucester*"  upon 
the  conviction  of  a  tenant  for  committing  wastej*^*  but  the  action  on 
the  case  in  the  nature  of  waste,  which  superseded  the  writ  of  waste, 
entitles  the  landlord  to  recover  actual  damages  only,  and  does  not 
involve  the  forfeiture  of  the  estate.  This  ground  of  forfeiture,  just 
like  any  other,  may  be  waived  by  the  person  entitled  to  claim  it ;  so 
where  the  landlord  lies  by  till  the  waste  committed  by  the  tenant  has 
been  repaired,  he  cannot  subsequently  insist  on  a  forfeiture.*'^  By 
statute  in  Indiana,  judgment  of  forfeiture  and  eviction  shall  only  be 
given  in  favor  of  the  person  entitled  to  the  reversion  against  the 

"=  Palmer  v.  Young,  108  111.  App.  *"  6  Edw.  I,  ch.  5. 

252.  *"  Crowe  v.  Wilson,  65  Md.  479,  5 

^"Williams  v.  Chicago  Exhibition  Atl.  427;  Sackett  v.  Sackett,  8  Pick. 

Co.,  188  111.  19,  58  N.  E.  611.  (Mass.)  309;  Stetson  v.  Day,  51  Me. 

^"*  Cannon  v.  Barry,  59  Miss.  289.  434;    McMillan   v.   Robbins,    5   Ohio 

"''Anderson  v.   Hammon,  19  Ore.  28;    Prettyman   v.   Walston,   34    111. 

446,  24  Pac.  228.  175,  192. 

"8Winship  v.   Pitts,   3   Paige    (N.  "=•  Jackson   v.   Andrew,   18   Johns. 

Y.)     259;     Crockett    v.    Crockett,    2  (N.  Y.)   431. 
Ohio  St.  180;   Parrott  v.  Palmer,  3 
My.  &  K.  632. 


II 


737  ACTIONS    RELATIVE    TO    POSSESSION.  [§'   640 

tenant  in  possession  when  the  injury  to  the  estate  in  reversion  shall 
be  adjudged  in  the  action  to  be  equal  to  the  value  of  the  tenant's 
estate  or  unexpired  term,  or  to  have  been  done  in  malice.*^"  It  seems 
that  under  this  statute  a  general  finding  in  an  action  for  waste  and 
judgment  for  the  possession  of  lands  is  not  sufficient.  The  court  will 
not,  in  the  face  of  the  statute,  indulge  in  any  presumptions  as  to  what 
the  jury  may  have  believed  or  what  the  evidence  may  have  been  upon 
the  subject  of  the  injury.*^^ 

In  Wisconsin  it  has  been  held  that,  since  the  local  statutes  made 
full  regulations  on  the  subject  of  waste,  without  providing  for  for- 
feiture, there  could  be  no  forfeiture  in  that  state  on  this  ground,  and 
that  the  statute  of  Gloucester  had  not  been  adopted  there  as  part  of  the 
common  law.*^^ 

VI.    Actions  Relative  to  Possession. 

§  640.  The  common  law  rule  is  that  actual  or  constructive  pos- 
session is  necessary  to  support  an  action  of  trespass  quare  clausum, 
and,  a  tenant  for  a  definite  term  being  in  possession,  the  landlord 
has  not  such  constructive  possession  as  will  entitle  him  to  maintain 
such  action.  The  old  action  of  trespass  quare  clausum  fregit,  as  its 
name  imports,  was  based  upon  an  alleged  invasion  of  possession,  and 
in  such  action  could  be  litigated  only  the  injury  to  the  possession,  and 
damages  recovered  only  by  the  party  in  or  entitled  to  the  possession.'*®^ 
So,  a  long  line  of  authorities  lay  down  the  doctrine  that,  while  land  is 
in  the  possession  of  a  lessee  for  years,  an  injury  to  the  possession, 
which  is  not  of  a  permanent  character,  entitles  the  lessee  to  maintain 
an  action  of  trespass  quare  clausum  but  does  not  entitle  the  lessor  to 
maintain  such  an  action.*®*    It  has  been  declared  to  be  a  well-recog- 

*'" Bollenbacker  v.  Fritts,  98   Ind.  ard,    94    Ind.    319.      Kentucky:    Mc- 

50;  R.  S.  1881,  §  286.  Closkey  v.  Doherty,  97  Ky.  300,  30 

""Sullivan  v.  O'Hara,  1  Ind.  App.  S.  W.  649.   Maine:  Little  v.  Palister, 

259,  27  N.  E.  590.  3    Me.    6.      Massachusetts:     Geer    v. 

"=Phelan  v.  Boylan,  25  Wis.  679.  Fleming,    110    Mass.    39.     Missouri: 

*''  Arneson  v.  Spawn,  2  S.  D.  269,  Lindenbower  v.  Bentley,  86  Mo.  515. 

49   N.  W.  1066;    Hersey  v.   Chapin,  New  Hampshire:    Anderson  v.   Nes- 

162  Mass.  176,  38  N.  E.  442;  Bascom  mith,    7    N.    H.    167;    Robertson    v. 

V.  Dempsey,  143  Mass.  409,  9  N.  E.  George,  7  N.  H.  306;  Wentworth  v. 

744;    Gooding    v.    Shea,    103    Mass.  Portsmouth  &c.  Ry.,  55  N.  H.  540. 

360;  Woodman  v.  Francis,  14  Allen  Ohio:   Miller  v.  Fulton,  4  Ohio  433. 

(Mass.)     198;     Gibbons    v.    Billing-  South  Carolina:    Davis  v.  Clancy,  3 

ham,  10  Ark.  9.  McCord    (S.  Car.)    422.     Tennessee: 

"^"Indiana:    Boyce  v.   Graham,  91  McNairy  v.  Hicks,  3  Baxt.    (Tenn.) 

Ind.  420;  Chicago  &c.  R.  Co.  v.  Lin-  378.  Texas:  Reynolds  v.  Williams, 
Jones  L.  &  T.— 47 


§    641]  EIGHTS  AND  LIABILITIES  OF  THE  PARTIES.  738 

nized  rule  that  the  owner  himself  cannot  maintain  trespass  quare 
clausum  unless  he  is  in  possession  at  the  time  of  the  alleged  trespass, 
for  the  gist  of  the  action  is  the  injury  to  the  possessory  right.*^^  There- 
fore, a  landlord,  out  of  possession,  cannot  maintain  trespass  as  long 
as  the  tenant  is  in  possession.*^^ 

§  641.  However,  a  qualification  of  the  foregoing  rule  permits  the 
landlord,  while  a  tenant  is  in  possession,  to  maintain  trespass  on  the 
case  for  an  injury  to  the  freehold,  or,  in  case  a  statutory  form  of 
action  has  superseded  the  common  law  writs,  to  maintain  the  statutory 
'action  corresponding  to  an  action  on  the  case.^®'^  If  such  a  suit  under 
a  code,  by  whatever  name  it  may  be  called,  is  for  a  damage  sustained 
by  the  owner,  it  is  properly  brought  by  him.*^^  In  Kentucky*^^  and 
in  Wisconsin*''*'  an  owner  out  of  possession  is,  by  express  statute,  given 
a  right  to  maintain  an  action  of  trespass  for  an  injury  to  the  freehold. 
It  is  well  settled  that  for  a  permanent  injury  to  the  freehold,  the  land- 
lord may  sue  in  an  appropriate  form  of  action,  even  though  his  tenant 
be  in  possession  of  the  premises.*®^  While  a  lessor  cannot  maintain  an 
action  for  injury  to  the  legal  rights  of  the  lessee,*^^  \^q  j^^y  sue  for  an 
actual  damage  to  the  reversion."*^^ 

But  this  qualification  has  been  said  to  apply  only  in  cases  where 
there  has  been  a  trespass.  So,  if  the  injury  to  the  freehold  was  un- 
accompanied by  any  trespass,  the  owner  of  the  reversion  could  not 

1   Tex.    311;    Railway   v.    Smith,    3  son  v.  Pesked,  1  M.  &  S.  234;   Car- 

Tex.    Civ.    App.    483,    23    S.    W.    89.  roll  v.  Rigney,  15  R.  I.  81,  23  Atl. 

Vermont:    Catlin  v.   Hayden,   1   Vt.  46;    Cannon  v.  Hatcher,  1  Hill    (S. 

375;  Weston  v.  Gravlin,  49  Vt.  507.  Car.)    260;    Brown    v.    Bridges,    31 

English:    Baxter  v.  Taylor,  4  B.  &  Iowa  138;    Fitch  v.  Gosser,  54  Mo. 

Ad.  72.  267;   Ridge  v.  Railroad  Trans.   Co., 

^'Chadbourne   v.    Straw,    22    Me.  56  Mo.  App.  133;  Gibbons  v.  Dilling- 

450;   Jones  v.  Leeman,  69  Me.  489;  ham,  10  Ark.  9. 

Kimball  v.   Hilton,   92   Me.   214,   42  *'*«  Fitch  v.  Gosser,  54  Mo.  267. 

Atl.  394.  ^^"McCloskey   v.    Doherty,    97   Ky. 

^^''Bartlett  v.  Perkins,  13  Me.  87;  300,  30  S.  W.  649. 

Carroll  v.   Rigney,  15  R.   I.   81,  23  «»Wis.  St.  1898,  §  2198. 

Atl.  46.  "'  Parker  v.   Shackelford,   61   Mo. 

^"Lachman  v.  Deisch,  71  111.  59;  68;  Austin  v.  Huntsville  &c.  Co.,  72 

Hersey  v.  Chapin,  162  Mass.  176,  38  Mo.  535,  543;   Cramer  v.  Groseclose, 

N.  E.  442;  Ashley  v.  Ashley,  4  Gray  53   Mo.   App.   648;    Bobb  v.    Syenite 

(Mass.)    197;    Lienow   v.    Richie,    8  Granite  Co.,  41  Mo.  App.  642;  Stoltz 

Pick.    (Mass.)    235;    Davis  v.  Nash,  v.    Kretschmar,    24    Wis.    283,    285; 

32  Me.  411;  Lawry  v.  Lawry,  88  Me.  Watson  v.   Harrigan,   112  Wis.   278, 

482,   34   Atl.    273;    Ray  v.   Ayers,   5  87  N.  V/.  1079. 

Duer    (N.  Y.)   494;   Bobb  v.  Syenite  «=  Stark  v.  Miller,  3  Mo.  470. 

Granite  Co.,  41  Mo.  App.  642;  Jack-  «' Fitch  v.  Gosser,  54  Mo.  267. 


739  ACTIONS    RELATIVE    TO    POSSESSION".  [§    642 

maintain  such  an  action  against  the.  tort-feasor.  A  person  entering 
on  leased  premises  by  the  consent  of  the  tenant  cannot  be  considered 
a  trespasser,  even  though  he  causes  an  injury  to  the  reversion ;  for  an 
abuse  of  an  authority  to  enter  upon  land  does  not  make  the  party  en- 
tering a  trespasser.*''*  On  the  other  hand  a  mere  license  from  a  lessor 
for  a  third  person  to  enter  on  leased  premises  does  not  confer  any 
right  to  enter  except  by  the  consent  of  the  lessee.  If  the  licensee  enter 
by  force  he  is  a  trespasser  and  the  lessor  is  not  liable  for  his  conduct.*^^ 

§  642.  In  determining  whether  the  landlord  or  tenant  or  both 
may  recover  damages  for  injury  to  real  estate,  the  general  rule  applies 
that  wherever  a  legal  right  is  violated  the  owner  of  such  right  is  en- 
titled to  action  therefor.  If  possession  only  is  disturbed,  the  owner 
of  the  right  of  possession  may  have  the  right  of  action.  If  the  free- 
hold, independent  of  and  beyond  its  use  and  enjoyment  by  the  tenant, 
is  injured,  the  owner  of  the  freehold  in  like  manner  has  his  action. ^^"^ 
The  tenant,  and  not  the  landlord,  has  the  exclusive  right  of  action  for 
any  injury  to  the  possession  of  the  rented  premises;  and  this  is  true 
whether  he  retains  the  possession  or  not,  since  it  is  his  exclusive  right 
of  possession  that  gives  him  the  exclusive  right  of  action.*^^  The  pos- 
session of  a  tenant  is  as  complete  for  all  purposes  of  redress  against 
wrong-doers  as  is  the  possession  of  an  owner  in  fee  simple.*''^  So  far 
as  regards  any  injury  to  the  use  of  the  land  during  the  term,  no  dis- 
tinction exists  between  the  rights  of  a  tenant  for  years  and  an  owner 
in  fee  in  possession.*''^  Where  a  tenant  in  possession  of  land  has  been 
evicted  by  a  stranger,  he  alone  is  entitled  to  bring  an  action  to  recover 
possession.^""  A  tenant  in  possession  of  premises  affected  by  a  nui- 
sance, under  a  lease  made  during  the  continuance  of  the  nuisance,  can 
maintain  an  action  to  abate  it  and  recover  damages.^"^     But  an  in- 

494  Perry  v.  Bailey,  94  Me.  50,  46  *""  Grand  Rapids  &c.  Co.  v.  Jarvis, 

Atl.  789;  Dingley  v.  Buffum,  57  Me.  30    Mich.    308;    Heilbron    v.    King's 

379.    See  also,  Watson  v.  Harrigan,  River  &c.   Co.,   76   Cal.   11,   17   Pac. 

112  Wis.  278,  87  N.  W.  1079.  933. 

"^McKenzie  v.  Hatton,  141  N.  Y.  ^^^  Maxwell   v.    Jones,   90    N.    Car. 

6,  35  N.  E.  929.  324. 

«^  Arneson  v.  Spawn,  2  S.  D.  269,  '"'  Bly  v.  Edison  &c.  Co.,  172  N.  Y. 

49  N.  W.  1066;    George  v.  Fisk,  32  1,  64   N.  E.  745,   reversing  54  App. 

N.  H.  32;  Bannon  v.  Mitchell,  6  111.  Div.    427;     Lockett    v.    Fort    Worth 

App.  17.  &c.   R.   Co.,   78   Tex.    211,    14    S.   W. 

'"Walden  v.  Conn,  84  Ky.  312,  1  564;   Walker  v.  Walker,  51  Ga.  22; 

S.  W.  537.  Central  Ry.  v.  English,  73  Ga.  366; 

*^^  Strohlburg    v.    Jones,    78    Cal.  Rabaud  v.  Frank,  7  Mo.  App.  64. 
381,  20  Pac.  705. 


§    643]  EIGHTS   AND  LIABILITIES   OF  THE  PARTIES.  740 

itmction  to  restrain  a  nuisance  is  granted  only  where  the  right  to  be 
protected  is  a  permanent  one,  or  where  its  enjoyment  has  been  of  long 
duration.^*^^  The  interest  of  a  tenant  from  month  to  month  is  not 
such  a  right,  although  he  may  have  been  long  in  the  enjoyment  of  the 
premises  by  such  a  tenure.^"^  However,  it  has  been  held  that  a 
tenant  of  an  upper  story  was  entitled  to  a  perpetual  injunction 
against  the  tenant  of  the  floor  below,  restraining  him  from  inter- 
fering with  the  common  passageways  in  the  building.^"*  A  ten- 
ant may  also  recover  from  a  third  person  for  a  tortious  interference 
with  the  business  conducted  on  the  premises. ^''^  Under  a  statute  pro- 
viding that  "the  jury  shall  assess  the  entire  amount  of  damages  which 
the  party  aggrieved  is  entitled  to  recover,"  it  has  been  held  that  a 
lessee  may  sue  for  injuries  to  his  leasehold  without  making  the  lessor 
a  party.  The  words  "party  aggrieved"  refer  only  to  the  plaintiff  in  the 
action.  The  object  of  the  law  is  to  prevent  a  multiplicity  of  suits  by 
him,  and  not  to  deprive  him  of  his  lawful  remedy,  or  to  render  a  re- 
sort thereto  both  difficult  and  hazardous.  If  the  tenant  suffered  sub- 
stantial damages  to  his  crops  and  to  his  leasehold,  he  should  not  be 
compelled  to  make  every  one  a  party  to  the  action  who  may  have 
some  vested  or  contingent  interest  in  the  fee,  when  his  claim  is  in  no 
way  adverse  to  them.  The  landlord  and  tenant  may  bring  separate 
actions  for  injuries  to  their  respective  interests.^"" 

Title  in  fee  in  the  lessor  is  not  necessary  to  sustain  a  lease  against 
trespassers;  it  is  sufficient  to  show  bona  fide  possession  on  his  part 
under  a  claim  of  right.^"'' 

§  643.  If  a  tenant  be  deprived  of  his  leasehold  interest  in  conse- 
quence of  the  appropriation  by  the  public  to  public  uses  of  the 

property  upon  which  his  leasehold  estate  rests,  it  cannot  be  doubted 
that  he  is  deprived  of  his  property.  Therefore,  the  holder  of  a  lease 
has  such  an  interest  in  premises  as  will  enable  him  to  maintain  an 
action  for  damages  resulting  to  his  leasehold  estate,  sustained  in  con- 
sequence of  the  construction  of  a  duly  authorized  public  improvement 
whether  such  damage  results  from  the  negligence  of  the  municipal 

502  Yan   Bergen  v.   Van   Bergen,   3  ^"^  Brunswick  &c.  Ry.  Co.  v.  Har- 

Johns.   Ch.    (N.  Y.)    282;    Porter  v.  dey,  112  Ga.  604,  37  S.  E.  888. 

Witham,    17    Me.    292;     Jordan    v.  =»«  Dale  v.  Southern  R.  Co.,  132  N. 

Woodward,  38  Me.  423.  Car.  705,  44  S.  E.  399;   Williams  v. 

«»  Clarke  v.  Thatcher,  9  Mo.  App.  Canal  Co.,  130  N.  Car.  746,  41  S.  E. 

436.  1030. 

™^  Miller  v.  Fitzgerald  &c.  Co.,  62  =»^  Kellogg  v.  King,  114   Cal.   378, 

Neb.  270,  86  N.  W.  1078.  46  Pac.  166. 


741  ACTIONS    RELATIVE    TO    POSSESSION.  [§    644 

authorities  or  otherwise/'"*  The  measure  of  the  damages  is  the  injury 
to  the  leasehokl  property  which  is  injuriously  affected  by  the  public 
improvement;  in  arriving  at  that  damage,  neither  the  profits  in  the 
business  conducted  on  the  premises,  nor  the  cost  to  the  tenant  of  the 
fixtures  and  improvements  placed  therein,  nor  the  articles  purchased 
for  the  purpose  of  enabling  the  lessee  to  conduct  the  business,  nor 
diminution  in  the  value  of  fixtures,  improvements,  or  articles  such  as 
are  removed  by  the  lessee,  can  be  recovered  as  damages.  But  the  in- 
creased value  of  the  premises  for  rent  in  consequence  of  the  putting 
in  of  such  fixtures  and  improvements  may  properly  be  considered  in 
computing  the  damages  to  the  leasehold  estate.  The  tenant  cannot 
prove  that  he  had  an  option  upon  the  premises  for  a  longer  term  of 
years,  if  such  option  was  not  to  be  exercised  at  his  will  alone  but  was 
dependent  upon  the  concurrence  of  the  landlord.^"^ 

§  644.  According  to  common  law  rules  of  pleading,  not  only  must 
the  fact  that  the  plaintiff  is  a  reversioner  appear,  but  the  extent  of 
the  reversion,  whether  it  is  for  years  or  for  life  or  in  fee ;  and  it  must 
be  furthermore  specifically  alleged,  according  to  the  old  practice  that 
the  injury  to  was  to  the  revision.^^"  But,  according  to  later  cases 
arising  after  the  rules  of  pleading  had  been  relaxed,  it  was  declared 
that  no  advantage  would  be  gained  by  requiring  the  complaint  to  state 
formally  and  explicitly  that  the  reversion  was  injured,  when  the  facts 
pleaded  as  the  cause  of  action  are  of  such  a  nature  as  necessarily  to 
work  such  injury.  Where  a  complaint  shows  a  permanent  and  sub- 
stantial injury  to  the  freehold  itself,  for  which  an  owner  asks  dam- 
ages, a  court  cannot  say  that  the  action  is  for  injury  to  the  posses- 
sion merely,  and  so  cannot  be  maintained  by  an  owner  out  of  posses- 
sion.^^^  However,  a  plaintiff's  right  being  in  reversion,  he  is  bound 
to  show,  in  order  to  maintain  his  action,  an  invasion  of  this  right. 
For  an  injury  to  the  possesion,  the  tenant  only  has  his  remedy;  for 
an  injury  to  the  reversion,  the  right  of  action  is  in  the  owner.  It  is 
essential  that  this  distinction  should  be  called  to  the  attention  of  the 
jury,  because  injuries  to  the  reversion  are  hard  to  estimate  and  great 
caution  is  always  to  be  taken  that  the  fact  of  damage  to  such  interest 
is  clearly  established.^^'     Cutting  trees  and  carrying  away  the  timber 

""Pause  V.  City  of  Atlanta,  98  Ga.  '^^lArneson  v.  Spawn,  2  S.  D.  269, 

92,  26  S.  E.  489;   Bentley  v.  City  of  49  N.  W.  1066;  Beavers  v.  Trimmer, 

Atlanta,  92  Ga.  623,  18  S.  E.  1013.  25  N.  J.  L.  97. 

5»»  Pause  V.  City  of  Atlanta,  98  Ga.  ''-  Hastings  v.  Livermore,  7  Gray 

92,  26  S,  E.  489.  (Mass.)  194. 

""Davis  V.  Jewett,  13  N.  H.  88. 


§    644]  RIGHTS  AXD  LIABILITIES   OF  THE  PARTIES.  743 

made  from  tliem  would  clearly  be  an  injury  to  the  reversion  for  which 
an  action  would  lie;^^^  but  the  cutting  up  of  a  lawn  by  driving  coal 
teams  over  it  was  not  damage  of  so  substantial  and  permanent  a  char- 
acter as  to  justify  a  finding  that  it  was  an  injury  to  the  inheritance.^^* 
The  owtier  of  the  reversion  may  maintain  an  action  against  a  stranger 
to  recover  damages  for  breaking  and  entering  the  premises,  and  re- 
moving a  blind  and  breaking  a  pane  of  glass.^^^  However  a  lessor 
has  no  right  of  action  against  a  third  person  for  use  and  occupation  for 
a  portion  of  the  leased  premises  during  the  time  the  lessee  was  en- 
titled to  possession.  If  there  has  been  no  injury  to  the  freehold,  the 
right  of  action  against  such  an  occupant  is  in  the  lessee.^^^  Further- 
more, a  lessor  could  not  enjoin  a  third  person  from  interfering  with 
the  lessee's  enjoyment  of  the  premises  or  with  an  easement  connected 
with  them.  The  right  of  action  for  such  interference  would  be  in  the 
lessee,  as  he  was  the  only  person  who  was  injured  by  it.^"  In  further- 
ance of  this  principle  it  has  been  declared  that  the  wrongful  ouster 
of  a  tenant  by  a  stranger  is  not  of  itself  a  legal  ground  of  recovery  by 
the  landlord.  To  authorize  recovery  by  him  it  must  appear  that  he 
has  sustained  a  loss  of  his  rents  or  that  he  has  sustained  damages  in 
the  destruction  of  the  premises  or  in  the  dilapidation  of  them,  injuri- 
ous to  the  reversion.^ ^^  Whether  diverting  water  from  leased  prem- 
ises is  an  injury  to  the  inheritance  depends  on  circumstances.  By 
the  diversion  of  water  from  a  mill  while  it  was  under  lease,  the  les- 
sees were  the  sufferers  not  the  lessor.  If  the  rent  is  paid  without 
diminution,  the  lessor  has  no  cause  of  complaint.^^^  On  the  other 
hand  the  water  of  a  natural  stream  cannot  be  taken  away  from  land 
for  a  great  number  of  years  and  then  turned  back,  without  a  per- 
manent injury  to  the  land.  The  right  to  use  water  flowing  over  land 
is  identified  with  the  realty  and  is  a  real  and  corporeal  hereditament. 
On  this  ground  it  has  been  held  that  a  reversioner  may  maintain  an 
action  for  interfering  with  natural  water,  although  the  land  be  in  the 
actual  possession  of  a  tenant  for  years, ^^*'  The  converse  is  true  that 
flowing  land  may  be  an  injury  to  the  reversion.^^^ 

"^Gulf  &c.  R.  Co.  V.  Settegast,  79  Ga.    222,   42   S.   E.   498;    Walker   v. 

Tex.  256,  15  S.  W.  228.  Clifford,  128  Ala.  67,  29  So.  67. 

"*  Watson  v.   Harrigan,   112   Wis.  "' Walden  v.  Conn,  84  Ky.  312,  1 

278,  87  N.  W.  1079.  S.  W.  537. 

^'''Cushing    v.    Kenfield,    5    Allen  ""Moody  v.  King,  74  Me.  497. 

(Mass.)     307;     Ridge    v.    Railroad  ""  Heilbron    v.    Last    Chance    &c. 

Trans.  Co.,  56  Mo.  App.  133.  Co.,  75  Cal.  117,  17  Pac.  65:  Cary  v. 

"°  Southern  R.  Co.  v.  Georgia,  116  Daniels,  5  Mete.    (Mass.)   236;   Hart 

Ga.  276,  42  S.  E.  508.  v.  Evans,  8  Pa.  St.  13. 

°"  Coney  v.  Brunswick  &c.  Co.,  116  "'Noyes  v.  Stillman,  24  Conn.  15. 


743  ACTIONS    RELATIVE    TO    POSSESSION,  [§    64:5 

The  true  rule  of  damages  in  an  action  on  the  case,  brought  by  a  re- 
versioner on  account  of  an  injury  done  to  the  premises,  is  the  amount 
of  the  injury  done  to  the  estate  in  reversion.^^^ 

§  645.  A  landlord  has  no  such  interest  in  the  growing  crops  of  his 
tenant  as  to  enable  him  to  maintain  an  action  against  a  person  who 
injures  the  crop.^^^  This  is  true,  even  though  it  is  provided  by 
statute  that  crops  shall  be  deemed  to  be  vested  in  the  landlord,  for 
that  is  only  to  protect  the  landlord  in  respect  to  the  collection  of  his 
rent.^^*  In  a  suit  brought  for  damages  to  a  growing  crop,  a  tenant, 
who  is  to  pay  one-third  of  the  crop  as  rent,  is  nevertheless  entitled  to 
recover  all  the  damages  and  not  merely  a  proportionate  share  to  his 
ultimate  interest.^^^  After  a  landlord  had  recovered  damages  for  the 
condemnation  of  land  for  a  right  of  way  for  a  railway,  the  tenant  was 
allowed  to  recover  damages  for  injury  to  the  crop  raised  on  the  shares 
caused  by  the  negligent  pulling  down  of  fences.  In  the  case  where 
this  decision  was  made  the  tenant  had  agreed  to  be  responsible  to  the 
landlord  for  all  injury  to  the  crop.^^^  On  the  other  hand,  it  has  been 
held  that  a  landlord  entitled  by  the  terms  of  the  lease  to  a  share  of  the 
crop  as  rent  may  maintain  an  action  for  damage  to  the  crop;  and  if 
no  objection  is  made  for  non-joinder  of  the  tenant  as  co-plaintiff,  he 
may  sue  alone  and  his  recovery  will  be  apportioned  according  to  his 
interest  in  the  crop.^^'^  The  conflicting  results  reached  in  the  two 
preceding  cases  can  be  explained  on  the  ground  that  in  the  latter,  the 
court  considered  the  landlord  and  tenant  as  tenants  in  common  of  the 
crop,. while  in  the  former  the  tenant  was  the  owner  and  the  landlord 
merely  entitled  to  a  lien.  This  distinction  is  made  in  Illinois,  the  law 
in  that  state  being  that,  where  a  tenant  leases  premises,  the  rent  to  be 
paid  by  part  of  the  crop,  when  matured,  and  a  wrong-doer  injures  or 
destroys  the  crops,  whereby  the  landlord  is  prevented  from  receiving 
his  rents  as  he  otherwise  might,  he  may  have  his  action  therefor.^-^ 
But  where  the  crops  are  to  be  marketed  by  the  tenant  and  the  proceeds 
divided  among  the  parties,  an  allegation  of  ownership  of  the  crop  by 

^'^  Dutro  V.  Wilson,  4  Ohio  St.  101.  =^  Texas  &c.  R.  Co.  v.  Bayliss,  62 

^-'  St.  Louis  &c.  R.  Co.  V,  Trigg,  63  Tex.  570. 

Ark.   536,   40   S.   W.    579;    Drake  v.  "'L.  St.  L.  &  T.  R.  Co.  v.  Barrett, 

Chicago  &c.  R.  Co.,  70  Iowa  59,  29  13  Ky.  L.  R.  232. 

N.  W.  804;  Townsend  v.  Isenberger,  °^Van    Hoozier   v.    Hannibal    &c. 

45  Iowa  670;   Kentucky  &c.  R.   Co.  R.  Co.,  70  Mo.  145;  Johnson  v,  Hoff- 

V.  Higgins,  9  Ky.  L.  R.  649.  man,  53  Mo.  504. 

■'^  Bridgers  v.  Dill,  97  N.  Car.  222,  ^"^  Ohio  &c.   R.  Co.  v.   Singletary, 

1  S.  E.  767.  34    111.    App.    425;    Younggreen    v. 

Shelton,  101  111.  App.  89. 


§    646]  EIGHTS  AND  LIABILITIES   OF   THE  PARTIES.  74-i 

the  landlord  is  not  sustained  by  the  proof  and  the  landlord  could  not 
therefore  maintain  his  action.^  ^'^ 

Where  fruit  trees  on  leased  premises  were  damaged  by  third  persons, 
the  landlord  was  held  to  be  entitled  to  sue  for  injury  to  the  trees  and 
the  tenant  for  injury  to  the  fruit.^^" 

§  646.  Tenants  at  will  and  by  sufferance. — Wliere  grass  upon  the 
land  in  possession  of  a  tenant  at  will  was  burned  by  the  negligence  of 
an  adjoining  owner,  it  was  held  that  no  right  of  action  for  such  burn- 
ing accrued  to  the  tenant  but  that  the  lessor  was  entitled  to  sue.^^^ 
But  the  rights  of  a  lessor  at  will  to  maintain  trespass  against  a 
stranger  for  entering  upon  an  estate  have  been  altered  by  the  statutes 
requiring  notice  to  terminate  such  estates.  .  Since  this  change  in  the 
law,  the  possession  of  a  tenant  at  will  before  notice,  and  for  three 
months  after,  can  in  no  sense  be  held  to  be  the  possession  of  the  land- 
lord. The  tenant  has  not  only  the  possession  but  the  right  to  posses- 
sion, and  in  this  respect,  he  stands  on  the  same  footing  as  a  tenant  for 
a  term  certain.^^^  Still  a  mere  tenant  at  sufferance  cannot  generally 
recover  for  an  injury  to  the  premises,  for  he  could  only  recover  for 
the  injury  to  his  possessory  right  and  he  held  only  on  the  forbearance 
of  the  legal  owner.  The  doctrine  that  proof  of  possession  alone  is 
sufficient  to  maintain  an  action  of  trespass  against  a  wrong-doer,  is 
founded  on  the  fact  that  possession  is  prima  facie  evidence  of  title. 
But  if  the  title  be  in  another,  the  right  of  the  possessor  to  recover  is 
limited  to  the  amount  of  damage  to  the  possessory  interest;  if  the 
damage  be  beyond  this,  and  to  the  freehold,  the  possessor  or  tenant  at 
sufferance  cannot  maintain  an  action  for  its  recovery .^^^  The  intention 
of  the  parties  is  the  test  whether  sufficient  possession  is  transferred  by 
the  letting  of  pasture  rights  to  enable  the  lessee  to  maintain  a  posses- 
sory action  in  regard  to  the  premises.  This  intention  is  to  be  gathered 
from  what  was  said  at  the  time  of  letting,  from  the  situation  and  con- 
dition of  the  land  itself,  as  whether  it  was  capable  of  any  other  use 
consistent  with  the  right  of  the  tenant.  The  meaning  of  such  a  rent- 
ing might  also  be  controlled  by  the  custom  of  the  country,  if  there 
was  any  on  the  subject.^^* 

Where  the  owner  of  a  building  leases  at  will  the  rooms  therein, 

=''Ohio  &c.   R.   Co.  v.   Singletary,  "=  French     v.     Fuller,     23     Pick. 

34  111.  App.  425.  (Mass.)  104. 

^'^  Bedingfield   v.    Onslow,    3    Lev.  ="  International     &c.     R.     Co.     v. 

209.  Ragsdale,  67  Tex.  24,  2  S.  W.  515. 

=^'Gulf  &c.  R.  Co.  V.  Cusenberry,  ^^Noyes  v.  Stillman,  24  Conn.  15. 
86  Tex.  525,  26  S.  W.  43. 


'^45  ACTIONS    RELATIVE    TO    POSSESSION.  [§    647 

though  they  constitute  the  chief  parts  of  the  building,  such  owner  is 
not  thereby  put  out  of  possession,  so  as  to  preclude  him  from  suing 
in  trespass  for  the  destruction  of  the  building.^^^ 

§  647.  An  action  of  trespass  by  the  landlord  will  not  lie  against 
a  tenant  pending  the  term,  because  the  wrong  which  is  the  gist  of  the 
action  is  an  offense  against  the  actual  possession  and  right  of  posses- 
sion, and  these  are  in  the  tenant.^^"  The  same  reasons,  which  pre- 
clude a  landlord  from  bringing  trespass  against  his  tenant,  entitle  the 
tenant  to  sue  in  trespass  for  a  wrongful  entry  by  the  landlord;  and 
this  right  has  been  held  to  subsist  under  a  lease  reserving  to  the  lessor 
the  right  to  sell  or  use  for  building  where  the  landlord  entered  for 
purposes  other  than  the  two  specified.^"  It  was  laid  down  in  a  very 
ancient  case  that  a  tenant  for  years  could  maintain  trespass  even 
against  his  landlord."^  The  contrary  is  true  of  a  tenant  at  sufferance 
or  strictly  at  will  where  such  a  holding  is  determined  by  the  entry  of 
the  landlord.^^'*  But  the  statutes  requiring  notice  to  end  a  tenancy  at 
will  have  changed  this  rule  and  it  is  not  now  competent  for  a  landlord 
to  enter  upon  the  premises,  without  the  notice  to  quit  provided  by 
those  statutes.  The  consequence  is  that,  until  the  time  set  by  the  no- 
tice has  arrived,  the  lessee  at  will  has  a  lawful  and  exclusive  posses- 
sion, not  only  as  against  a  stranger,  but  also  against  the  lessor  at 
will.5*« 

In  regard  to  the  remedy  in  equity  of  a  tenant  to  prevent  his  land- 
lord from  intruding  on  his  possession,  it  has  been  held  that  he  cannot 
maintain  a  bill  in  equity  to  enjoin  mere  trespassing.  Although  there 
is  a  breach  of  the  covenant  for  quiet  enjoyment  in  such  case,  an  ac- 
tion at  law  for  breach  of  the  covenant  would  furnish  the  tenant  ade- 
quate relief.  It  is  a  universal  rule  that  an  injunction  will  not  be 
granted  to  restrain  a  trespasser  merely  because  he  is  a  trespasser. 
The  foundation  for  the  exercise  of  the  jurisdiction  of  a  court  of  equity 
in  the  restraining  of  threatened  trespasses  rests  on  the  inadequacy  of 
legal  remedies  to  compensate  for  probable  injuries  which  may  result 

^^  Curtiss  v.  Hoyt,  19  Conn.  154.  Y.)    150;    Harper   v.    Charlesworth, 

^'^  Brooks  V.  Rogers,  101  Ala.  Ill,  4  B.  &  C.  574. 

13  So.  386.  ="  Dickinson  v.  Goodspeed,  8  Cush. 

""Bryant  v.  Sparrow,  62  Me.  546.  (Mass.)    119;    Hilbourn  v.   Fogg,  99 

^^'Pomfret    v.    Ricroft,    1    Saund.  Mass.    11;    Cunningham    v.    Horton, 

322,  n.  5.  57     Me.     420.       See     Gunsolus     v. 

"^^ Hyatt   V.   Wood,    4    Johns.    (N.  Lormer,  54  Wis.  630,  12  N.  W.  62. 


§•  647]  EIGHTS  AISTD  LIABILITIES  OP  THE  PARTIES.  746 

if  the  commission  of  the  trespass  is  not  restrained.^"  Applying  the 
same  principle  to  a  different  state  of  facts  it  was  held  that  the  owner 
of  a  building  could  not  enjoin  a  tenant  of  rooms  in  it,  from  placing 
on  the  building  a  sign  to  indicate  his  business,  there  being  no  stipula- 
tion as  to  signs  in  the  lease.  If  the  owner  were  injured  by  the  sign, 
he  had  an  adequate  remedy  at  law.^*^ 

"1  Deegan  v.  Neville,  127  Ala.  471,        "^  Goodell  v.  Lassen,  69  111.  145. 
29  So.  173. 


,4 1 


CHAPTEE  IX. 


EENT  AND   ITS   RECOVERY. 


1.  Nature  of  Rent,  §§  648-649. 

2.  Actions  to  Recover  Rent,  §§  650- 

666. 

3.  Apportionment,  §§  667-671. 


4.  Set-off  and  Recoupment,  §§   672- 

674. 

5.  Abatement  of  Rent,  §§  675-681. 


I.     Nature  of  Rent. 

§  648.  Rent  has  been  defined  generally  to  be  a  return  or  compen- 
sation for  the  possession  of  some  corporeal  inheritance ;  to  be  a  certain 
profit,  either  in  money,  provisions  or  labor  issuing  out  of  lands  and 
tenements,  in  return  for  their  use.  It  may  be  more  specifically  de- 
fined as  the  compensation,  either  in  money,  provisions,  chattels,  or 
labor,  received  by  the  owner  of  the  soil  from  the  occupant  thereof.^ 
Eent  is  said  to  be  a  certain  yearly  profit  arising  out  of  lands  and  tene- 
ments as  a  compensation  for  the  use  thereof  and  therefore  is  properly 
termed  an  income.^  In  a  technical  definition  it  has  been  declared 
that  rent  is  a  right  to  a  certain  profit  issuing  annually  (or  rather 
periodically),  out  of  lands  and  tenements  corporeal  in  retribution 
{reditus),  for  the  land  that  passes.  Thus  the  qualities  of  a  rent  ac- 
cording to  this  definition  are  (1)  a  right  to  a  certain  profit;  (2)  issu- 
ing periodically;  (3)  out  of  lands  and  tenements  corporeal;  (4)  in 
retribution  or  return;  (5)  for  the  land  that  passes.^  Eent  is  the 
recompense  for  the  use  and  occupation  of  lands ;  and  it  signifies  noth- 
ing how  or  when  that  recompense  may  be  rendered  or  received.  Its 
essential  characteristic  as  rent  is  that  it  is  a  recompense  for  the  use 
and  occupancy  of  land.*  Eent  is  for  the  use  of  land  only,^  and  if  per- 
sonal chattels  are  leased  with  the  land,  the  rent  issues  out  of  the  land 
only.^  There  are  at  common  law  three  manners  of  rents,  rent-service, 
rent-charge  and  rent-seek.     Eent-service  is  so  called  because  it  has 


^Bouvier's  Law  Diet.,  Rawle's  Re- 
vision. 

=  State  V.  McBride,  5  Neb.  102. 

'  2  Min.  Inst.  32. 

*Constantine  v.  Wake,  31  N.  Y. 
Super.  Ct.  239. 


'^  Commonwealth  v.  Contner,  18 
Pa.  St.  439. 

«Fay  V.  Holloran,  35  Barb.  (N. 
Y.)  295;  Armstrong  v.  Cummings, 
58  How.  Pr.  (N.  Y.)  331. 


747 


§    6-i9j  EENT  AXD  ITS  RECOVERY.  748 

some  corporeal  service  incident  to  it,  as  at  the  least  fealty  or  the 
feudal  oath  of  fidelity.  A  rent-charge  is  where  the  owTier  of  the  rent 
has  no  future  interest,  or  reversion  expectant  in  the  land;  as  where 
a  man  deeds  his  whole  estate  in  fee  simple,  but  with  a  certain  rent 
payable,  and  adds  to  the  deed  a  covenant  or  clause  of  distress.  The 
land  is  liable  to  the  distress,  not  of  common  right,  but  by  virtue  of  the 
clause  in  the  deed ;  and  therefore  it  is  called  a  rent-charge,  because  of 
the  manner  the  land  is  charged  with  a  distress  for  the  payment  of  it. 
Eent-seck,  redvtus  siccus,  or  barren  rent,  is  in  effect  nothing  more 
than  a  rent  reserved  by  deed,  but  without  any  clause  of  distress.  These 
are  the  general  divisions  of  rents,  but  the  difference  between  them  (in 
respect  to  the  remedy  for  recovering  them)  has  long  ago  been  abol- 
ished; so  that,  in  the  time  of  Blackstone,  all  persons  could  have  the 
like  remedy  by  distress  for  rent-seek,  rents  of  assize,  and  chief  rents, 
as  in  case  of  rents  reserved  in  a  lease.'^ 

Rent  not  due  passes  with  the  estate,  for,  until  it  is  due,  it  is  not  a 
chose  in  action  and  the  grantor  of  land  is  not  assignor  of  the  rent  as 
a  chose  in  action.*  A  stipulation  in  a  lease  that  the  rent  shall  be  ap- 
plied to  a  specified  purpose  does  not  change  its  character  of  rent.** 
Yet  rent,  at  common  law,  is  incident  to  the  reversion,  and  cannot  be 
reserved  to  a  stranger,  and  though,  by  the  terms  of  the  lease,  the  lessee 
covenants  to  pay  rent  not  to  the  lessor  but  to  a  third  party,  the  sum 
so  covenanted  to  be  paid,  is  not  properly  a  rent.  It  is  not  payable 
upon  the  land  as  rent  is,  nor  can  it  be  recovered  by  action  or  distress, 
for  there  is  neither  privity  of  contract  nor  privity  of  estate  between 
the  parties,^" 

§  649.     A  fee  farm  rent  arises  where  the  rent  is  created  by  deed 

and  the  fee  is  granted.  Lord  Coke  says  that  since  the  statute  of 
Quia  emptores  terrarum  there  could  be  no  fee  farm  rent  in  England 
on  a  feoffment  in  fee,  as  the  purchaser  would  now  hold  not  of  his  im- 
mediate feoffer,  but  of  the  chief  lord  of  the  fee."    It  seems,  however, 

^2  Bl.  Com.  41.  "But  in   such   case,   where   a   man, 

«Van  Wicklen  v.  Paulson,  14  upon  such  a  gift  or  lease,  will  re- 
Barb.  (N.  Y.)  654.  serve  to  him  a  rent  service,  it  be- 

'•'  Ryerson  v.   Quackenbush,   26   N.  hoveth,    that  the    reversion    of    the 

J.  L.  236.  lands  and  tenements  be  in  the  donor 

^"Littleton,  §§  345,  346;    Co.  Litt.  or  lessor.     For  if  a  man  will  make 

213a,  b,  143b;   2  Bl.  Com.  41;  Gates  a    feoffment    in    fee,    or    will    give 

V.    Frith,    Hobart    130a;     3    Kent's  lands   in  taile,  the   remainder  over 

Com.  463;  Ryerson  v.  Quackenbush,  in  fee  simple,  without  deed,  reserv- 

26  N.  J.  L.  236.  ing  to  him  a  certain  rent,  this  res- 

"Coke,    Book    II,    ch.    12,    §    215.  ervation  is  void,  for  that  no  rever- 


749  NATURE  OF  EEXT.  [§  649 

that  such  reservation  in  a  deed,  accompanied  by  a  power  of  distress 
and  reentry  on  non-payment,  might  make  a  good  rent  charge;  and  if 
there  is  no  such  clause  in  the  deed  giving  a  right  of  distress,  then 
such  rent  is  rent-seek,  because  the  grantor  cannot  enforce  payment  of 
rent  by  distress,  and  if  he  has  never  been  seized  of  the  rent,  he  is 
without  any  remedy  at  all.^-  In  a  case  arising  in  1852  before  the 
Supreme  Court  of  Missouri,  it  was  declared  that  such  reservations 
were  upheld  in  the  United  States  and  text-books  were  cited  to  sustain 
this  position.  In  the  deed  creating  the  rent  in  the  Missouri  case,  there 
was  a  right  of  entry  reserved  in  case  of  default  in  payment  of  rent 
for  six  months.^ ^  It  was  argued  against  the  validity  of  a  reservation 
of  rent  in  an  estate  in  fee  with  a  condition  for  reentry  in  case  of  non- 
payment, that  it  was  repugnant  to  the  nature  of  the  estate  and  a  re- 
straint on  alienation.  But  the  court  pointed  out  that  grants  of  es- 
tates in  fee  on  condition  have  constantly  been  upheld  and  writers 
have  always  assumed  the  legality  of  such  conditions.  A  condition  an- 
nexed to  a  conveyance  in  fee,  that  the  grantee,  his  heirs  and  assigns 
shall  pay  to  the  grantor  and  his  heirs  an  annual  rent,  and  that,  in  de- 
fault of  payment,  the  grantor  or  his  heirs  may  reenter,  is  a  lawful 
condition.  Littleton  puts  it  as  an  example  of  a  condition  in  a  deed, 
at  the  commencement  of  that  part  of  his  treatise  which  relates  to  es- 
tates on  condition.^*  The  systematic  writers  upon  the  law  of  real 
property,  from  that  time  to  the  present,  have  assumed  the  legality  of 
such  conditions.^^ 

Furthermore  it  has  been  declared  that  the  rent  reserved  in  a  lease 
in  fee,  if  not  strictly  an  estate  in  the  land,  is  nevertheless  a  heredita- 
ment, and  is  descendible  and  inheritable.  The  covenant  to  pay  rent 
runs  with  the  land  and  the  assignees  of  the  grantee  or  covenantor  in 
such  a  lease  are  liable  on  the  covenant  to  pay  rent;  nor  is  there  any 
reason  for  distinguishing  between  the  assigns  of  the  covenantor  and 
the  assigns  of  the  covenantee,  in  regard  to  the  rights  and  obligations 
of  such  covenants.^^ 

sion  remains  in  the  donor,  and  such  Michael,  6  N.  Y.  467.  In  the  prin- 
tenant  holds  his  land  immediately  cipal  case  it  was  further  held  that 
of  the  lord,  of  whom  his  donor  a  statute  authorizing  the  assign- 
held."  ment  of  such  rights  of  reentry  was 

'=Coke,  Book  II,  ch.  12,  §  217.  valid. 

"Alexander  v.  Warrance,  17  Mo.  ''^  2    Bl.    Coin.    154;    Cruise    Dig., 

228.      Citing    1    Hilliard    on    Real  Vol.  II,  ch.  1,  §  1,  pi.  3,  9;   4  Kent 

Property,  4th  ed.,  p.  314;   1  Tucker  Com.  123. 

15,  16.  ^^  Tyler  v.  Heidorn,  46  Barb.   (N. 

"Van  Rensselaer  v.  Ball,  19  N.  Y.  Y.)   439. 
100,    distinguishing    De    Peyster    v. 


§    650]  HEXT  AND  ITS  KECOVERY.  750 

II.    Actions  to  Recover  Rent. 

§'  650.  Remedies  for  recovering  rent. — According  to  the  practice 
of  the  ancient  common  law  the  most  effective  means  of  recovering  rent 
was  by  distress.  It  is  laid  down  that  this  remedy  for  the  recovery  of 
rent  was  derived  from  the  civil  law;  for  anciently  in  the  feudal  law 
the  tenant's  neglect  to  perform  his  duties  caused  a  forfeiture  of  the 
estate ;  but  the  feudal  forfeitures  were  afterward  turned  into  distresses. 
A  distress  is  the  taking  of  a  personal  chattel  out  of  the  possession  of 
a  wrong-doer  into  the  custody  of  the  person  injured  to  procure  a  satis- 
faction for  the  wrong  committed.  To  entitle  a  party  to  distrain  for 
rent,  there  must  be  an  actual  demise,  or  a.  contract  for  a  demise 
amounting  to  as  much,  and  a  fixed  rent  agreed  upon.^^  In  the  New 
England  States  the  right  of  distress  for  rent  does  not  exist,  being 
superseded  by  the  practice  of  attachment  on  mesne  process  ;^^  and  in 
many  other  States  of  the  Union,  this  right  has  been  abolished  and 
other  remedies  substituted  in  its  stead,  or  the  same  nomenclature  has 
been  retained  and  the  mode  of  procedure  regulated  by  statute.^" 

Of  the  actions  at  law  to  recover  rent,  debt  for  rent  was  at  all  times 
maintainable  whether  the  demise  was  by  deed,  or  by  writing  not  under 
seal,  or  by  word  of  mouth,  both  of  the  latter  being  included  in  the 
common  expression  "parol  demises."^^  But  no  instance  is  to  be  found 
among  the  older  cases  of  an  action  of  debt  for  a  reasonable  remuner- 
ation for  the  occupation  of  land,  which  can  be  accounted  for  on  the 
ground  that  the  occupation  of  land,  without  an  agreement  to  pay  a 
fixed  sum  for  it,  is  of  rare  occurrence."  So  that  the  better  view  is 
that  debt  for  use  and  occupation  would  lie  at  common  law  and  is  not 
defeated  by  proof  of  a  parol  demise  reserving  a  certain  rent.  Accord- 
ing to  the  accepted  English  view,  the  statute  of  11  Geo.  II,  ch.  19, 
sec.  14,  applied  only  to  actions  of  assumpsit  for  use  and  occupation 
and  its  effect  was  to  extend  this  form  of  action,  which  could  formerly 
be  brought  only  where  no  definite  sum  was  due  as  rent,  to  cases  where 

"3  Bl.  Com.  6.  certain,  if  the  amount  is  so  stipu- 

^M    Dane's    Abr.    126;    Aik.    Dig.  lated  as  to  malie  it  capable  of  ascer- 

357;  Wait,  Ex  parte,  7  Picli.  (Mass.)  tainment  by  calculation.    Brooks  v. 

100,  105.  Cunningham,  49  Miss.  108. 

"The    Remedy    by    Distress    and  '"Gibson  v.  Kirk,  1  Q.  B.  850,  41 

the  Enforcement  of  Liens  has  been  E.  C.  L.  807;    Trapnall  v.  Merrick, 

stated    in    the    author's    work    on  21  Ark.  503. 

Liens,  Vol.  I,  §  596,  et  seq.     In  Mis-  ="  Egler  v.  Marsden,  5  Taunt.  25; 

sissippi    distress    for    rent    will    lie  Wilkinson   v.    Hall,    3    Bing.   N.   C. 

where  produce  is  agreed  to  be  paid,  508. 

though  the  value  is  not  fixed   and 


* 


751  ACTIONS  TO  RECOVER  RENT.  [§  650 

a  fixed  amount  of  rent  was  reserved  by  the  contract.  The  statute  pre- 
vented a  defendant  from  defeating  recovery  by  showing  a  contract  for 
a  definite  sum  as  rent,  as  he  could  have  done  before  its  passage.^^ 

In  the  opinion  of  some  Judges  in  this  country  it  has  been  declared 
that,  at  common  law,  assumpsit  for  use  and  occupation  could  not  be 
maintained,  and  had  its  existence  in  the  statute  11  Geo.  II,  ch.  19, 
sec.  14.^^  Yet  by  the  better  view  the  right  of  action  by  assumpsit  for 
use  and  occupation,  did  exist  prior  to  11  Geo.  II,  as  a  common-law 
remedy.  Judge  Tucker,  in  the  case  of  Epps  v.  Cole,^'^  controverts  the 
correctness  of  the  contrary  declaration  and  traces  the  action  as  far 
back  as  James  I,  and  again  reaffirms  his  opinion  in  the  case  of  Sutton 
v.  Mandeville.^^  Kentucky  and  Connecticut,  mainly  on  the  research 
and  opinion  of  this  learned  judge,  have  also  held  that  assumpsit  for 
use  and  occupation  was  a  common-law  remedy.  In  the  Virginia  case 
first  referred  to-  the  court  says :  "The  action,  for  use  and  occupation 
was  not  given  by  the  statute  of  George ;  it  has  been  used  at  least  from 
the  time  of  James  the  first  as  the  case  of  Dartual  v.  Morgan-^  clearly 
proves;  and  the  case  of  How  v.  Norton^''  shows  it  in  use  in  the  time  of 
his  son,  Charles  II,  and  a  variety  of  other  cases  might  be  shown  to 
prove  the  same  thing. ^' 

In  the  United  States  the  action  of  assumpsit  for  use  and  occupation 
or  some  code  proceeding  of  a  similar  nature  is  generally  recognized 
as  the  proper  method  to  recover  rent  under  certain  circumstances,  and 
the  English  statute,  in  relation  to  such  action,  has  either  been  ex- 
pressly reenacted  or  adopted  as  a  part  of  the  common  law.  In  North 
Carolina,  in  1849,  the  statute  of  11  Geo.  II  was  held  to  be  not  in  force 
and  therefore  an  action  of  use  and  occupation  would  not  lie  against 
an  intending  purchaser  who  had  been  let  into  possession,  occupied  for 
a  while,  and  then  failed  to  carry  out  the  contract  of  purchase  f^  but 
this  rule  has  been  changed  by  statute  since  then  and  an  assumpsit 
could  now  be  maintained  under  similar  circumstances.-^ 

2^  Gibson  v.  Kirk,  1  Q.  B.  850,  41  Johnson  v.   May,   3   Lev.   150,  Bull. 

E.  C.  L.   807.     The  common   count  N.  P.  138.     See  Lankford  v.  Green, 

in   debt   for   use   and   occupation   is  52  Ala.  103. 
good,  though  the  holding  be  under         "M  H.  &  M.  (Va.)  167. 
a  written  lease,  and  in  such  count        "°  1  Munf.  (Va.)  407. 
it   is    not    necessary   to    allege   the         ^'^  Cro.  Jac.  598. 
character    in    which    the    plaintiff        "1  Lev.  179. 

sues,    whether    as    assignee    of   the         =^  Long  v.  Bonner,  11  Ired.  L.  (N. 

reversion  or  otherwise.     Armstrong  Car.)  27. 
v.  Clark,  17  Ohio  495.  '"  Such   an   action    will   now  lie — 

=' Fitzgerald  v.  Beebe,  7  Ark.  305;  see  Rev.  Code,  ch.  63,  §  2. 
Byrd  v.  Chase,  10  Ark.  602,  citing 


§    651]  RENT  AND  ITS  RECOVERY.  752 

Covenant  and  debt  frequently  cover  the  same  causes  of  action;  it 
is  said  that  covenant  is  a  remedy  for  the  recovery  of  damages  for  the 
breach  of  a  contract  under  seal ;  while  debt  lies  whenever  the  demand 
is  for  a  sum  certain,  or  is  capable  of  being  readily  reduced  to  a  cer- 
tainty. Where  there  is  a  contract  under  seal  for  the  payment  of  a 
specific  sum  of  money,  the  distinction  between  these  forms  of  action 
may  be  considered  as  pvirely  technical ;  covenant  and  debt  being  con- 
current remedies  for  the  recovery  of  any  money  demand,  where  there 
is  an  express  or  implied  contract  in  an  instrument  under  seal  to  pay 
it.^'*  If  the  lessee  assign  the  term,  with  the  assent  of  the  lessor,  after 
this,  debt  does  not  lie  against  the  lessee,^^  but  after  a  third  person  has 
received  the  Avhole  term  by  assignment,  both  debt  and  covenant  will 
lie  against  such  assignee  on  the  privity  of  estate.^ ^ 

§  651.  The  statutory  action  for  use  and  occupation  is  of  the 
nature  of  assumpsit  at  common  law  on  an  implied  promise  and  is  not 
an  action  ex  delicto.  It  is  therefore  subject  to  a  constitutional  ex- 
emption as  a  debt  by  contract.""  The  action  for  use  and  occupation 
of  lands  is  one  arising  upon  contract  and  rests  on  the  agreement  to 
pay  rent,  express  or  implied."*  The  action  for  mesne  profits  difi:ers 
from  an  action  for  use  and  occupation  in  this,  that  the  latter  is 
founded  upon  a  promise,  express  or  implied,  while  the  former  springs 
from  a  trespass,  an  entry,  vi  et  armis,  upon  premises  and  a  tortious 
holding.  The  action  to  recover  mesne  profits  being  trespass  quare 
clausum  fregit  cannot  be  maintained  without  proof  of  the  trespass. 
And  a  petition  which,  stating  the  defendants  were  in  possession  of  the 
land  at  the  time  the  suit  was  brought,  fails  to  state  a  cause  of  action 
for  trespass  for  mesne  rents  and  profits.^''  But  in  the  ordinary  case 
where  the  occupation  of  land  is  without  the  owner's  consent,  his  rem- 
edy against  the  occupant  is  trespass  quare  clausum  fregit;  if  with  con- 
sent, the  proper  remedy  is  an  action  for  use  and  occupation.^^ 

^oQuttoun   v.    Dulin,    72    Md.    536,  «' St.  Louis  &c.  R.  Co.  v.  Hart,  38 

20     Atl.     134;     1    Chitty    Pleading  AvVi.  112. 

(16th  Am.  ed.),  star  page  121,  131,  '^  Dalton    v.    Laudahn,    30    Micti. 

132.  349. 

"Dartmouth  College  v.  Clough,  8  ^Thompson   v.    Bower,    60    Barb. 

N.  H.  22;  Auriol  v.  Mills,  4  Term  R.  (N.  Y.)    463,   477,  per  Johnson,  J.; 

94,    98;    1    Saunders    241,    n.    5;     1  Young  v.  Downey,  145  Mo.   261,  46 

Chitty  Plead.  106.  S.  W.  962;  Peters  v.  Elkins,  14  Ohio 

''Dartmouth  College  v.  Clough,  8  344. 

N.  H.  22;  Rowland  v.  Coffin,  12  Pick.  =<=  Anderson  v.  Critcher,  11  Gill  & 

(Mass.)  125.  J.    (Md.)    450;    Espy   v.    Fenton,   5 

Ore.  423. 


753  ACTIONS  TO  RECOVER  RENT.  [§■   651 

For  a  trespass  itself  in  taking  a  thing,  or  for  the  enjoyment  of  it 
by  the  trespasser,  assumpsit  will  not  lie,  as  no  contract,  express  or  im- 
plied, exists  between  the  parties.  So,  with  respect  to  land,  if  the  tres- 
passer let  it  and  receive  rents,  he  might  be  liable  for  them  as  money 
had  and  received  to  the  use  of  the  owner.  But  for  the  injury  of  il- 
legally entering  upon  the  land  of  another,  and  keeping  him  out,  the 
remedy  is  by  action  of  trespass  for  the  mesne  profits  after  the  owner 
regains  the  possession.  No  action  ex  contractu  lies,  as  there  is  nothing 
from  which  a  contract  can  be  implied.^^  A  person  put  in  as  tenant 
by  an  adverse  claimant  in  possession  of  land  cannot  be  sued  by  the 
true  owner  in  use  and  occupation,  even  though  he  had  notice  that  his 
lessor's  title  was  in  dispute.^®  Privity  of  contract  between  the  parties 
is  indispensable  to  the  maintenance  of  this  action.  A  trespasser  can- 
not be  converted  into  a  tenant  without  his  consent.  The  theory  of 
waiving  a  tortious  entry  and  occupation  and  suing  on  an  implied  con- 
tract to  pay  for  use  and  occupation  does  not  apply  to-  this  kind  of 
case.^"  An  action  ex  contractu  has  sometimes  been  maintained  against 
a  mere  trespasser ;  but  these  are  cases  where  the  avails  of  the  trespass 
or  occupation,  as  money  had  and  received  to  the  plaintiff's  use,  and 
not  the  trespass  or  occu]3ation  itself  is  the  gist  of  the  action.  In  such 
cases,  a  party  may  waive  the  tort,  and  sue  in  assumpsit  for  money  had 
and  received.'*" 

The  amount  of  recovery  in  an  action  for  use  and  occupation  would 
be  the  fair  rental  value  of  the  property,*^  and,  if  it  was  held  on  an 

"Long  V.  Bonner,  11  Ired.  L,  (N.  demise  in  the  ejectment  suit  is  laid. 

Car.)   27;   Butler  v.  Cowles,  4  Ohio  but    not    after    that.      To    recover 

205.  profits   subsequently   accruing  tres- 

^  Hardy   v.   Williams,   9    Ired.   L.  pass    for    mesne    profits    must    be 

(N.  Car.)   177;   Lankford  v.  Green,  brought.      Sinnard    v.    McBride,    3 

52  Ala.  103;  Kieth  v.  Paulk,  55  Iowa  Ohio  264. 

260,  7  N.  W.  588;   Roxbury  v.  Hus-  "  Lindon    v.    Hooper,    Cowp.    414, 

ton,  39  Me.  312.  419,  per  Lord  Mansfield;    Scales  v. 

^'  Hurley   v.   Lamoreau,   29   Minn.  Anderson,   26  Miss.  94.     Assumpsit 

138,    12    N.    W.    447;    Edmonson   v.  for  use  and  occupation  will  not  lie 

Kite,  43  Mo.  176;   Peters  v.  Elkins,  at  the  suit  of  a  purchaser  of  mort- 

14   Ohio    344;    Richey   v.    Hinde,    6  gaged   premises,  sold  under   decree 

Ohio  371;  Rogers  v.  Libbey,  35  Me.  against  a  tenant  in  possession  un- 

200;    Richardson  v.  Richardson,  72  der     the     mortgage.       The     proper 

Me.  403;    Munroe  v.  Luke,  1   Mete,  remedy  would  be  trespass  for  mesne 

(Mass.)   459,  464.  See  also,  Espy  v.  profits.     Peters  v.  Elkins,   14   Ohio 

Fenton,  5  Ore.  423.     "Where  one  en-  344. 

ters  adversely  upon  land  assumpsit  "  Cohoon  v.  Kineon,   46   Ohio   St. 

for    mesne    profits    may    be    main-  590,  22  N.  E.  722;  Shiner  v.  Abbey, 

tained    up    to    the    time    when    the  77  Tex.  1,  13  S.  W.  613. 
Jones  L.  &  T.— 48 


652] 


RENT  AXD  ITS  EECOVEEY. 


'51 


uncertain  tenure,  would  cover  only  the  time  of  actual  occupation. 
Evidence  of  the  value  of  the  estate  for  sale  is  not  competent  as  bearing 
upon  the  question  of  rental  value.*^  If  the  holding  has  been  under  a 
void  lease,  the  writing  may  be  given  in  evidence  to'  show  the  value  of 
the  rents,  or  the  plaintifE  may  avail  himself  of  an  agreement  which 
has  not  been  declared  upon,  whereby  a  rent  certain  is  fixed.*^ 

§  652.  The  statute  providing  a  remedy  for  the  recovery  of  rent, 
by  action  of  assumpsit  for  use  and  occupation,  limits  it  to  cases  where 
the  agreement  is  not  by  deed.**  "Nor  is  it  easy,"  said  Justice  Wilde, 
of  the  Massachusetts  Court,  "to  discern  any  good  reason  why  it  should 
not  be  thus  limited ;  since  where  the  demise  is  by  deed,  another  remedy 
is  provided,  applicable  to  the  contract."*^  According  to  common-law 
rules  of  pleading,  a  general  count  for  use  and  occupation  was  proper 
for  the  recovery  of  rent  due  from  a  tenant,  occupying  under  a  parol 
demise;  but  where  there  was  a  lease  under  seal,  it  was  necessary  to 
declare  either  in  debt  or  covenant  upon  the  lease.**'  To  maintain  an 
action  for  use  and  occupation  it  was  necessary  to  prove  a  tenancy  un- 
der a  parol  demise  ;*^  in  law  a  count  for  use  and  occupation,  and  one 


*^Cohoon  v.  Kineon,  46  Ohio  St. 
590,  22  N.  E.  722. 

"  Marr  v.  Ray,  151  111.  340,  37  N. 
E.  1029;  Williams  v.  Sherman,  7 
Wend.  (N.  Y.)  109;  Wilson  v.  Trus- 
tees of  No.  16,  8  Ohio  174. 

"  Beverly  v.  Lincoln  &c.  Co.,  6  A. 
&  E.  829,  839.  Before  the  statute 
an  action  for  use  and  occupation 
might  he  maintained,  unless  an  ac- 
tual demise  were  shown;  but  proof 
of  such  a  demise  was  held  (though 
not  uniformly)  to  be  fatal  to  the 
action,  either  on  the  ground  of  its 
showing  a  real  contract  or  because 
the  demise,  having  passed  an  in- 
terest, the  defendant  could  not  be 
said  to  occupy  by  the  plaintiff's  per- 
mission. In  some  instances  an  ex- 
ception was  allowed  where  an  ex- 
press promise  could  be  proved  or 
intended.  The  alteration  intro- 
duced by  the  statute  was  that  proof 
of  a  demise,  unless  by  deed,  was 
no  longer  fatal  to  the  action;  but 
the  terms  of  the  demise  might  be 


used  as  evidence  of  the  quantum  of 
damages.  To  same  effect  see  Kier- 
sted  V.  Orange  &c.  R.  Co.,  69  N.  Y. 
343;  West  v.  Cartledge,  5  Hill  (N. 
Y.)  488;  Wood  v.  Wilcox,  1  Denio 
(N.  Y.)  37. 

*=  Codman  v.  Jenkins,  14  Mass.  93. 

'"  Warren  v.  Ferdinand,  9  Allen 
(Mass.)  357;  Richards  v.  Killam,  la 
Mass.  239,  243;  Codman  v.  Jenkins, 
14  Mass.  93;  1  Chit.  PI.  117,  377; 
Smiley  v.  McLauthlin,  138  Mass. 
363. 

^'Boston  V.  Binney,  11  Pick. 
(Mass.)  1.  The  Massachusetts 
practice  act  abolishes  the  distinc- 
tion between  actions  of  assumpsit, 
covenant  and  debt,  but  requires  the 
plaintifE  to  set  forth  the  substantive 
facts  necessary  to  constitute  the 
cause  of  action.  If  a  claim  for  rent 
under  a  parol  demise  is  his  cause 
of  action,  it  is  well  described  by  a 
count  for  use  and  occupation;  but 
if  the  cause  of  action  is  a  claim  for 
rent   upon   a   lease   under   seal,   he 


1 


755  ACTIONS  TO  EECOVER  EENT.  [§    653 

for  a  breach  of  covenant  for  non-payment  of  rent  constitute  different 
causes  of  action.**  Where  the  relation  of  landlord  and  tenant  is  not 
created  by  deed  but  is  established  by  a  contract,  express  or  implied, 
the  landlord  has  two  remedies  against  the  tenant  for  non-payment  of 
rent:  first,  an  action  on  the  contract  for  the  rent  reserved;  secondly, 
an  action  for  use  and  occupation  of  the  premises.^^ 

In  Michigan  the  rule  is  settled  that  an  action  for  use  and  occupa- 
tion can  be  maintained  on  a  written  lease  under  seal.^"  The  reason 
for  refusing  the  action  upon  a  sealed  demise  is  that  assumpsit  will 
never  lie  at  common  law  on  a  sealed  instrument,  but  the  Michigan 
statute  authorizing  actions  of  assumpsit  extends  to  "all  cases  arising 
upon  contracts  under  seal  or  upon  judgments,  when  an  action  of  cove- 
nant or  debt  may  be  maintained."  The  plain  purpose  of  this  statute 
is  to  remove  the  purely  technical  distinction  formerly  existing,  and  to 
put  all  contracts  upon  the  same  footing  where  parties  desire  to  sue 
in  assumpsit.  The  only  difference  in  substance  between  an  action  di- 
rectly on  the  terms  of  a  lease,  and  an  action  for  use  and  occupation, 
is  that  in  one  the  declaration  is  special,  and  in  the  other  general. 
The  purpose  of  both  actions  are  the  same  and  both  are  actions  arising 
upon  contract.^^ 

§  653.  The  whole  action  of  trespass  for  mesne  profits  is  a  con- 
trivance of  awkward  construction.  It  is  founded  on  a  recovery  in 
ejectment,  and  the  record  is  evidence  of  the  trespass ;  but  the  recovery 
of  damages  in  ejectment  is  no  bar  for  mesne  profits  for  the  same  tres- 
pass. The  recovery  in  ejectment  is  then  mere  evidence  of  a  right  es- 
tablished.^^ The  action  of  trespass  for  the  mesne  profits  lies  upon 
the  fiction  of  law  that  the  disseisee  after  entry  has  been  in  continu- 
ous possession  during  the  period  of  the  disseisin.     A  disseisee  who 

must  set  forth  the  lease  or  the  legal  ^^  Mann      v.      Brewer,      7      Allen 

effect    thereof    with    proper    aver-  (Mass.)   202,  204. 

ments  to  describe  the  cause  of  ac-  *"  Edmunds  v.  Missouri  &c.  Co.,  76 

tion.     Gen.  Stats.,  eh.  129,  §  2.     It  Mo.   App.    610;    Aull    Sav.    Bank    v. 

is    apparent,    therefore,    that    if    in  Aull,  80  Mo   199;  Edmonson  v.  Kite, 

an   action    for   use   and    occupation  43   Mo.   176;    McLaughlin  v.   Dunn, 

he  were  to  offer  in  evidence  a  ten-  45  Mo.  App.  645. 

ancy  under  such  lease,  there  would  '^  Dalton    v.    Laudahn,    30    Mich, 

be    a   variance    between    his    allega-  349;    Conkling   v.    Tuttle,    52    Mich, 

tion  and  his  proof,  and  he  could  not  630,  18  N.  W.  391;   Beecher  v.  Duf- 

recover.      Warren    v.    Ferdinand,    9  field,  97  Mich.  423,  56  N.  W.  777. 

Allen    (Mass.)    357,   358.      See   also,  "Dalton    v.    Laudahn,    30    Mich. 

Burnham  v.  Roberts,  103  Mass.  379.  349. 

^=Richey  v.  Hinde,  6  Ohio  371. 


654] 


RENT  AXD  ITS  RECOVERY. 


756 


has  recovered  possession  of  the  premises  by  any  la^vful  means  may 
maintain  trespass  for  mesne  profits  against  a  party  who  has  occupied 
the  premises  as  a  tenant  of  the  disseisor,  although  he  was  ignorant  of 
the  disseisee's  claim  of  title  and  has  in  good  faith  paid  rent  to  the  dis- 
seisor.^^ 

§  654.  An  action  for  use  and  occupation  cannot  be  maintained  ex- 
cept where  the  relation  of  landlord  and  tenant  exists.  Unless  there 
has  been  an  agreement,  express  or  implied,  from  which  an  obligation 
to  pay  rent  can  be  inferred,  some  other  remedy  than  an  action  for  rent 
or  for  use  and  occupation  must  be  resorted  to,^*    The  bare  proof  of  use 


^^Trubee  v.  Miller,  48  Conn.  347; 
Gould  V.  Stanton,  16  Conn.  12,  20; 
Morgan  v.  Varick,  8  Wend.  (N.  Y.) 
587,  592;  Jackson  v.  Stone,  13  Johns. 
(N.  Y.)  448;  Emerson  v.  Thompson, 
2  Pick.  (Mass.)  473,  486;  Washing- 
ton Bank  v.  Brown,  2  Mete.  (Mass.) 
293,  295;  Storch  v.  Carr,  28  Pa.  St. 
135;  Bradley  v.  McDaniel,  3  Jones 
L.  (N.  Car.)  128;  Green  v.  Biddle, 
8  Wheat.  (U.  S.)  1,  75;  Doe  v.  Whit- 
comb,  8  Bing.  46.  In  Liford's  case, 
11  Coke  46,  51  (1615)  there  is  a 
dictum  of  Lord  Coke,  C.  J.,  to  the 
effect  that  the  disseisee  after  re- 
entry cannot  recover  in  an  action 
for  mesne  profits  against  the  feoffee 
or  lessee,  or  disseisor  of  the  first 
disseisor,  giving  as  reasons  that 
"this  fiction  of  the  law  that  the  free- 
hold continued  always  in  the  dis- 
seisee shall  not  have  relation  to 
make  him  who  comes  in  by  title  a 
wrong-doer  vi  et  armis."  Buller, 
in  his  Nisi  Prius,  87,  speaking  of 
the  doctrine  of  Liford's  case  says: 
"It  may  admit  of  doubt,  for  there 
are  cases  to  the  contrary,  and  the 
reason  of  the  law  seems  to  be  with 
them."  In  Emerson  v.  Thompson, 
2  Pick.  (Mass.)  473,  486,  Wilde,  J., 
says:  "So  far,  therefore,  from  feel- 
ing myself  bound  by  Liford's  case 
as  an  authority,  I  am  of  opinion 
that  the  weight  of  authority  is  op- 
posed to  the  decision  in  that  case; 


and  that  this  is  also  the  opinion  of 
the  English  courts  may  be  inferred 
from  their  well-known  practice  in 
relation  to  the  action  for  mesne 
profits  consequent  to  a  recovery  in 
ejectment. 

"Indiana:  Pittsburgh  &c.  R.  Co. 
V.  Thornburgh,  98  Ind.  201;  Tinder 
V.  Davis,  88  Ind.  99;  Nance  v.  Alex- 
ander, 49  Ind.  516;  Newby  v.  Vestal, 
6  Ind.  412.  Colorado:  Hennessey  v. 
Hoag,  16  Colo.  460,  27  Pac.  1061. 
Maryland:  Stoddert  v.  Newman,  7 
H.  &  J.  251.  Florida:  Ward  v.  Bull, 
1  Fla.  271,  278.  Georgia:  Barnes  v. 
Shinholster,  14  Ga.  131;  Gould  v. 
Kerr,  52  Ga.  619.  Kentucky: 
Cooper  V.  Bramel,  14  Ky.  L.  R.  399. 
Maine:  Porter  v.  Hooper,  11  Me  170; 
Fox  v.  Corey,  41  Me.  81;  Eastman 
V.  Howard,  30  Me.  58.  Mississippi: 
Scales  V.  Anderson,  26  Miss.  94. 
Missouri:  Cohen  v.  Kyler,  27  Mo. 
122;  Aull  Sav.  Bank  v.  Aull,  80  Mo. 
199.  New  Hampshire:  Barron  v. 
Marsh,  63  N.  H.  107.  New  Jersey: 
Brewer  v.  Craig,  18  N.  J.  L.  214. 
New  York:  Bancroft  v.  Wardwell, 
13  Johns.  489,  491.  Pennsylvania: 
McCloskey  v.  Miller,  72  Pa.  St.  151. 
Ohio:  Richey  v.  Hinde,  6  Ohio  371. 
Oregon:  Espy  v.  Fenton,  5  Ore.  423. 
Vermont:  Blake  v.  Preston,  67  Vt. 
613,  32  Atl.  491;  Clark  v.  Clark.  58 
Vt.  527,  3  Atl.  508;  Moore  v.  Har- 
vey,   50    Vt.    297;     Chamberlin    v. 


i 


757 


ACTIONS  TO  RECOVER  REXT. 


[§   655 


and  occnpation  by  the  vendor,  after  conveyance  of  the  premises 
granted,  is  not  sufficient  to  support  an  action  for  compensation  in  the 
nature  of  rent.  The  purchaser's  remedy  in  such  cases  is  trespass  or 
ejectment  and  for  the  recovery  of  mesne  profits.^^  The  continued  oc- 
cupation of  an  execution  debtor  does  not  charge  him  with  rent  for  the 
premises  unless  he  expressly  agrees  to  pay  it.^^  For  the  same  reason 
a  debtor,  after  redeeming  land  sold  on  execution,  cannot  recover  from 
the  lessee  of  the  creditor  for  use  and  occupation  prior  to  the  redemp- 
tion.^^ As  a  general  rule  it  may  be  stated  that  no  action  for  rent, 
eo  nomine,  can  be  maintained,  unless  the  relation  of  landlord  and  ten- 
ant exists  between  the  parties.^^  It  follows  that  use  and  occupation 
cannot  be  maintained  against  a  person  who  holds  adversely^''  or  against 
a  trespasser.®"  Being  an  action  ex  contractu,  it  necessarily  follows 
that  no  action  of  that  nature  can  be  supported  where  there  is  no  pre- 
tense of  a  contract,  and  certainly  not  where  the  possession  is  claimed 
adversely.''^  However,  the  action  for  use  and  occupation  does  not 
necessarily  suppose  any  express  demise.®^  In  a  case  where  an  action 
of  this  nature  on  an  implied  promise  was  sustained  the  court  said: 
"There  was  no  express  contract  between  the  parties  and  none  was 
necessary.  The  law  will  imply  a  contract  to  pay  rent  from  the  mere 
fact  of  occupation,  unless  the  character  of  the  occupancy  be  such  as 
to  negative  the  existence  of  a  tenancy.  An  action  for  use  and  occupa- 
tion does  not  necessarily  suppose  any  demise.""^ 

§  655.  While  the  law  will  imply  the  relation  of  landlord  and  ten- 
ant from  the  fact  of  the  occupancy  of  the  premises  with  the  consent 
of  the  owner,***  this  implication  may  be  rebutted  by  proof  of  a  con- 


Donahue,  44  Vt.  57;  Stacy  v.  Ver- 
mont &c.  R.  Co.,  32  Vt.  551.  Wis- 
consin: De  Pere  Co.  v.  Reynen,  65 
Wis.  271,  22  N.  W.  761,  27  N.  W.  155. 
England:  Lindon  v.  Hooper,  Cowp. 
414,  419;  Winterbottom  v.  Ingham, 
7  A.  &  E.  (N.  S.)  611,  53  E.  C.  L. 
611. 

==  Preston  v.  Hawley,  139  N.  Y. 
296,  34  N.  E.  906;  Boston  v.  Binney, 
11  Pick.  (Mass.)  1;  Greenup  v.  Ver- 
nor,  16  111.  26;  Tew  v.  Jones,  13  M. 
&  W.  12;   §§  29-36. 

="  Miller  v.  Buchanan,  2  Baxt. 
(Tenn.)  390. 

"  Dakin  v.  Goddard,  32  Me.  138. 


'^^Warnock  v.  Harlow,  96  Cal.  298, 
31  Pac.  166. 

"^^  Inman  v.  Morris,  63  Miss.  347; 
Barron  v.  Marsh,  63  N.  H.  107; 
Richardson  v.  Richardson,  72  Me. 
403;  Bigelow  v.  Jones,  10  Pick. 
(Mass.)  161. 

«*  Edmonson  v.  Kite,  43  Mo.  176; 
Brewer  v.  Craig,  18  N.  J.  L.  214. 

"  Scales  V.  Anderson,  26  Miss.  94. 

"-Dean  &c.  v.  Pierce,  1  Camp.  467; 
Hull  V.  Vaughan,  6  Price  157. 

*^  Chambers  v.  Ross,  25  N.  J.  L. 
293. 

<**  Where  one  occupies  land  by  the 
consent  of  the  owner  the  presump- 


655] 


EENT  AXD  ITS  RECOVERY. 


758 


tract  or  any  other  fact  that  is  inconsistent  with  that  relation.*'^  Thus 
a  contract  to  purchase  which  is  ultimately  carried  out  and  occupation 
under  it/^  a  contract  or  other  fact  inconsistent  with  the  relation  of 
landlord  and  tenant,^^  a  suit  and  judgment  in  ejectment,*^^  occupation 
in  the  right  of  the  wife  and  refusal  to  acknowledge  the  owner  as  land- 
lord/^ occupation  when  the  plaintiff  denies  the  existence  of  any  con- 
tract for  the  use  of  the  premises/"  have  each  been  held  not  to  raise 
but  to  rebut  the  implication  of  a  tenancy  or  the  right  to  recover  rent. 
No  rent  could  be  recovered  from  one  who  was  put  into  possession  un- 
der a  void  conveyance.'^^ 

However,  it  has  been  held  that  after  a  purchaser  in  possession  makes 
a  default  in  his  contract  of  purchase,  an  implied  promise  to  pay  rent 
will  be  raised  from  his  continued  occupation  of  the  premises  and  an 
action  of  assumpsit  for  use  and  occupation  can  be  maintained  against 
him.^2  A  widow  left  in  possession  of  the  homestead  beyond  the  time 
allotted  to  her  by  statute  cannot  be  sued  in  assumpsit  for  use  and  oc- 
cupation by  the  heirs.  There  is  no  privity  of  contract  between  them 
and  her.  She  has  not  been  their  tenant  and  they  cannot  compel  her  to 
■  be.  There  is  no  relation  from  which  an  implied  contract  to  pay  rent 
can  be  inferred.''^  And  obviously  the  occupation  of  a  house  by  a 
woman  after  the  death  of  husband  does  not  render  his  estate  liable  for 
the  rent  of  the  house.'^*  Where  a  tenant  wlio  is  to  pay  rent  by  making 
repairs,  neglects  to  do  so,  the  landlord  has  been  allowed  to  treat  the 


tion  of  law  is  that  he  was  to  pay- 
reasonable  rent.  The  onus  of  prov- 
ing that  no  rent  was  to  be  paid  is 
on  the  one  who  seeks  to  be  relieved 
of  the  burden.  Sterrett  v.  Wright, 
27  Pa.  St.  259. 

»  Blake  v.  Preston,  67  Vt.  613,  32 
Atl.  491;  Stacy  v.  Vermont  &c.  R. 
Co.,  32  Vt.  551;  Chamberlin  v.  Dona- 
hue, 44  Vt.  57;  Moore  v.  Harvey,  50 
Vt.  297. 

««Dakin  v.  Allen,  8  Cush.  (Mass.) 
33;  Newby  v.  Vestal,  6  Ind.  412; 
Miles  V.  Elkin,  10  Ind.  329;  Hoffar 
V.  Dement,  5  Gill  (Md.)  132;  Wy- 
man  v.  Hook,  2  Me.  337;  Lapham  v. 
Norton,  71  Me.  83;  Dennett  v.  Pen- 
obscot &c.  Co.,  57  Me.  425;  Wood- 
bury V.  Woodbury,  47  N.  H.  11; 
Hough  V,  Birge,   11  Vt.   190;    Ban- 


croft V.  Wardwell,  13  Johns.  (N.  Y.) 
489;  Smith  v.  Stewart,  6  Johns.  (N. 
Y.)  46,  49. 

"  Stacy  V.  Vermont  &c.  R.  Co.,  32 
Vt.  551;  Strong  v.  Garfield,  10  Vt. 
502. 

"*  Chamberlin  v.  Donahue,  44  Vt. 
57. 

«°  Moore  v.  Harvey,  50  Vt.  297. 

™  Clark  V.  Clark,  58  Vt.  527,  3 
Atl.  508. 

"  Jewell  V.  Harding,  72  Me.  124. 

"Lapham  v.  Norton,  71  Me.  83; 
Patterson  v.  Stoddard,  47  Me.  355; 
Gould  V.  Thompson,  4  Mete.  (Mass.) 
224, 

'=  Emery  v.  Emery,  87  Me.  281,  32 
Atl.  900. 

'*  Carter  v.  Tippins,  113  Ga.  636, 
38  S.  E.  946. 


V59  ACTIOXS  TO  RECOVER  REXT.  [§  656 

contract  as  rescinded  and  recover,  for  the  use  and  occupation,  in  as- 
sumpsit.'^^ 

In  the  absence  of  an  express  agreement,  or  of  actual  possession,  only 
the  owner  of  the  legal  estate  can  maintain  an  action  for  use  and  occu- 
pation. A  cestui  que  trust  cannot  maintain  an  action  for  use  and  oc- 
cupation where  the  letting  is  by  the  trustee.^ ^ 

Since  a  plaintifE  cannot  recover  in  an  action  of  use  and  occupation 
unless  the  relation  of  landlord  and  tenant  exists  between  the  parties, 
and  if  it  does  the  defendant  cannot  controvert  the  title,  it  is  not  neces- 
sary for  the  complaint  in  such  an  action  to  allege  title  in  the  plain- 
tiff." 

§  656.  Recovery  of  crop  rents. — Where  a  tenant  failed  to  carry 
out  his  agreement  to  pay  rent  by  delivering  a  certain  number  of 
bushels  of  grain  raised  on  the  premises  on  a  certain  day,  it  was  held 
that  the  landlord  could  recover  the  market  value  of  the  grain  at  the 
time  it  should  have  been  delivered  in  an  action  for  use  and  occupa- 
tion.'^* Where  land  is  leased  for  a  crop  rent,  the  tenant  should  not  al- 
low the  land  to  lie  idle,  and  it  has  been  declared  that  the  landlord  is 
entitled  to  demand  for  rent  such  portion  of  the  crop  raised  as  his  share 
would  amount  to,  if  proper  industry  had  been  bestowed  upon  the 
land.^^  Objection  has  been  made  that  it  would  give  rise  to  intermi- 
nable litigation,  if  landlords  leasing  on  shares  could  claim  all  that 
would  have  inured  to  their  benefit,  if  the  tenant  had  exercised  ordinary 
industry  and  Judgment  in  the  cultivation  of  the  crops  and  that  the 
amicable  adjustment  of  rents  would  be  almost  exceptional.*"  But 
such  disputes  could  be  settled  in  an  action  of  account,  and  in  Vermont 
a  landlord  letting  on  shares  can  maintain  an  action  of  account  against 
his  tenant  after  demand  and  refusal.*^ 

The  rule  has  been  declared  to  be  well  settled  that  when  land  is  leased 
in  consideration  of  a  part  of  the  crop  that  may  be  raised  thereon,  and 
the  lease  does  not  contain  any  stipulation  as  to  when  such  share  is 
payable,  it  is  due  when  the  crop  is  harvested,  or  within  a  reasonable 
time  thereafter.*^    Crops  planted  one  year  and  harvested  the  next  arc 

'"  Tate  V.  McClure,  25  Ark.  168.  ''  Butler  v.  Baker,  5  Ohio  St.  584. 

"Couch  V.  McKellar,  33  Ala.  473;         ^» Wheat  v.  Watson,  57  Ala.  581. 
Grady  v.  Iback,  94  Ala.  152,  10  So.         «"  Patton  v.  Garrett,  37  Ark.  605. 
287;  Balls  v.  Westwood,  2  Camp.  13         "  Stedman  v.  Gassett,  18  Vt.  346. 
n;  Harris  v.  Booker,  12  Moore  283.         "  Spicer  v.  Spicer,  5  Harr.  (Del.) 

"Hood  V.  Mathis,  21  Mo.  308.   But  106;   Toler  v.  Seabrook,  39  Ga.  14; 

see   Stevens   v.   Andrews,   10   Colo.  Jones  v.  Adams,  37  Ore.  473,  59  Pac. 

402,  15  Pac.  616.  811;    Long  v.   Seavers,  103   Pa.   St. 


§    657]  KENT  AXD  ITS  KECOVEEY.  760 

reckoned  part  of  the  jDiofits  and  income  of  the  year  when  they  are 
harvested,^^  and  it  has  been  expressly  held  that  rent  in  kind  cannot 
become  due  until  the  crops  are  ripe  and  deliverable.^*  Under  a  pro- 
vision that  the  crop  rent  for  a  farm  planted  with  corn  and  oats  was  to 
become  due  "when  the  crop  matures  or  any  portion  of  it  is  fit  for 
market/'  the  rent  was  held  to  be  payable  as  soon  as  the  oats  were  in 
stack  and  the  corn  all  ripe.^^  Under  the  North  Carolina  statute  en- 
'abling  a  landlord  to  recover  rent  in  kind  before  division,  there  must  l)e 
an  agreement  in  writing  as  to  the  amount  which  shall  belong  to  tlie 
landlord  in  order  to  entitle  him  to  recover  under  the  statute.^® 

§  657.  If  there  is  no  actual  ouster,  or  eviction,  of  one  tenant  in 
common  by  the  other,  neither  is  liable  to  the  other  for  mere  use  and 
occupation,  unless  there  was  a  special  contract  or  agreement  to  pay 
rent,  or  unless,  upon  a  letting  of  the  premises,  one  tenant  in  common 
actually  realized,  in  rents  collected,  an  undue  proportion  of  the  use  and 
occupation  and  rents.^^  Nor  can  one  of  two  tenants  in  common  sue 
alone  for  use  and  occupation  of  the  premises  owned  in  common,  when 
the  lessee  was  let  into  possession  by  both,^®  or  when  the  lessee  was  let 
into  possession  by  another  tenant.®"  Under  the  statute  4  and  5  Anne, 
ch.  16,  which  is  regarded  as  a  part  of  the  common  law  in  Maine  and  in 
Massachusetts,  it  has  been  held  in  both  those  states  that  indebitatus 
assumpsit,  in  place  of  the  old  action  of  account,  would  lie  by  one  ten- 
ant in  common  against  another,  as  bailiff,  for  receiving  more  than  his 
proportion  of  the  rents  and  profits.  The  statute  constitutes  the  re- 
ceiver bailiff  to  his  co-tenant,  without  special  appointment,  and  all 
that  is  requisite  to  bring  a  party  within  it  is  to  allege  and  prove  that 
he  is  tenant  in  common,  and  that  his  co-tenant  has  received  more  than 
his  just  share  of  rents.®"  However,  one  tenant  in  common  may  be  dis- 
seised by  another;  and  when  this  has  been  done,  as  to  the  rents  re- 
ceived during  the  period  of  disseisin,  assumpsit  is  no  longer  the  proper 
remedy  at  common  law,  nor  under  any  statute.®^    And  as  long  as  one 

517;   Lamberton  v.  Stouffer,  55  Pa.  100;   Hutton  v.  Powers,  38  Mo.  353; 

St.  284;    Brown  v.  Adams,  35  Tex.  Gowen  v.  Shaw,  40  Me.  56. 

447.  ^'  Dorsett  v.  Gray,  98  Ind.  273. 

^'  Lamberton    v.    Stouffer,    55    Pa.  ^'  Whitaker  v.  Allday,  71  Tex.  623, 

St.  284.  9  S.  W.  483. 

^  Spicer  v.  Spicer,  5  Harr.   (Del.)  '-^  Munroe  v.  Luke,  1  Mete.  (Mass.) 

106.  459,  464;  Richardson  v.  Richardson, 

^»  Hull  v.  Stogdell,  67  Iowa  251,  25  72  Me.  403. 

N.  W.  156.  "  Richardson    v.    Richardson,    72 

*"  Foster  v.  Penry,  76  N.  Car.  131.  Me.   403;    Thomas   v.    Pickering,   13 

^'Terrell  v.  Cunningham,  70  Ala.  Me.  337,   353;    Bracket  v.  Norcross, 


'^'61  ACTIONS  TO  RECOVER  RENT.  [§  608 

of  the  tenants  in  common  himself  occupies  the  premises  no  implied 
promise  to  pay  rent  arises  upon  which  use  and  occupation  may  be 
maintained.^2  Pqj,  ^^  |g  ^  general  principle  that  though  occupation  is 
with  the  consent  of  the  owner,  attendant  circumstances  may  be  such 
that  no  promise  to  pay  rent  can  be  inferred.®^ 

§  658.  That  rent  is  an  incident  to  the  reversion  and  that  whoever 
is  entitled  to  the  reversion  at  the  time  the  rent  becomes  payable  is  of 
right  entitled  to  it,  unless  it  is  reserved  in  the  grant,  is  a  proposition 
firmly  established  in  the  law.^*  "Both  assignees  in  deed  and  assignees 
in  law  shall  have  the  rent,"  says  Lord  Coke,  "because  the  rent  being 
reserved  of  inheritance  to  him  and  his  heirs  is  incident  to  the  rever- 
sion and  goeth  with  the  same."^^  Attornment  by  a  tenant  is  not  neces- 
sary to  enable  an  assignee  of  the  reversion  to  recover  rent,**®  and  rent 
which  does  not  become  due  till  after  a  conveyance  by  the  landlord,  goes 
to  the  grantee  entire.^^  A  lessor  who  has  assigned  his  reversion  can- 
not sue  the  lessee  on  the  covenants  to  pay  rent  in  the  lease.  To  such 
an  action  it  is  a  full  answer  that  the  plaintifE  had  assigned  before  the 
rent  accrued.^^  As  soon  as  the  privity  of  estate  is  transferred,  the 
remedy  by  debt  is  transferred  also,  and  passes  to  the  grantee  of  the 
reversion,  so  the  original  lessor  cannot  sue  in  debt  for  the  rent  under 
a  parol  lease  after  he  has  assigned  the  reversion.^^ 

As  a  general  rule,  however,  an  action  of  covenant  does  not  lie  with- 
out some  privity  of  contract,  while  debt  or  a  distress  lies  on  mere 
privity  of  estate.  ^°°  Furthermore,  at  common  law  choses  in  action 
were  not  assignable  and  none  but  parties  or  privies  to  express  cove- 
nants were  bound  by  them  or  could  take  advantage  of  them.  This  rule 
seems  to  have  been  well  settled  in  England,  and  to  avoid  its  effect  and 
enable  the  assignee  of  the  reversion  to  maintain  an  action  in  his  own 
name  upon  the  express  real  covenants,  those  running  with  the  land, 
the  statute,  33  Hen.  VIII,  ch.  34,  was  enacted.   After  the  passage  of 

1  Me.  89;  McClung  V.  Ross,  5  Wheat.  Watts    (Pa.)    394;    Biddle  v.   Huss- 

(U.    S.)    124;    Willison   v.   Watkins,  man,  23  Mo.  597,  602.     See  §  460. 
3  Pet.  43,  52;    Barnard  v.  Pope,  14         "'2  Coke,  p.  215;  §  348. 
Mass.  434,  438.  »°  Wise  v.  Falkner,  51  Ala.  359. 

"=  Gowen  V.  Shaw,  40  Me.  56.  ='  Dixon  v.  Niccolls,  39  111.  372. 

"'  Mitchell   v.   Pendleton,   21   Ohio         "'*  Markland  v.  Crump,  1  Dev.  &  B. 

St.  664.  L.  (N.  Car.)  94,  100;  Walker's  Case, 

«'Tubb  v.  Fort,  58  Ala.  277;  Pope  3  Coke  22. 
V.  Harkins,  16  Ala.  321;   English  v.         "' Mixon  v.  Coffield,  2  Ired.  L.   (N. 

Key,  39  Ala.  113;   Steed  v.  Hinson,  Car.)  301. 
76   Ala.   298;    Bank  &c.   v.   Wise,   3         ^"^  Adams  v.  French,  2  N.  H.  387. 


§    658]  EEXT  AXD  ITS  KECOVERT.  762 

this  act,  the  assignee  of  the  reversion  could  maintain  his  action  upon 
the  express  real  covenants.  It  enabled  the  lessor  and  reversioner  succes- 
sively to  transfer  from  one  to  the  other  the  privity  of  contract."^ 
This  statute  of  Henry  Eight  is  generally  held  to  be  a  part  of  the  com- 
mon law  in  this  country.^*'^  Although  the  statute  was  regarded  as  not 
in  force  in  Ohio,  it  was  nevertheless  held  that  an  assignee  of  a  re- 
version had  a  right  of  action  on  a  lessee's  covenant  to  pay  rent  under 
the  code  in  that  state,  because  the  covenant,  though  not  made  with  the 
assignee,  was  made  for  his  benefit.^'^^ 

Whatever  doubt  may  have  originally  existed  upon  the  point,  it  is  now 
well  settled  that  an  assignee  of  rent,  without  the  reversion,  may  have 
debt  for  the  rent  against  the  lessee.^"*  A  lessor  may  assign  the  rent  to 
become  due  upon  a  lease  without  assigning  the  reversion  and  the  as- 
signee in  such  case  may  maintain  an  action  for  the  rent  in  his  own 
name.^°^  But  an  assignment  not  under  seal,  of  a  lease  under  seal, 
does  not  transfer  to  the  purchaser  the  legal  title  to  the  instrument,  so 
as  to  enable  him  to  maintain  an  action  on  its  covenants.  An  assign- 
ment should  be  by  an  instrument  of  as  high  a  nature  as  the  instru- 
ment it  purports  to  transfer.  The  purchaser  of  the  lease  by  the  written 
transfer,  not  under  seal,  becomes  its  equitable  owner,  but  he  has  not 
such  legal  title  as  to  enable  him  to  maintain  an  action  for  rent  in  his 
own  name.^*'® 

Under  a  cropping  contract,  where  no  estate  in  the  land  passes  to 
the  occupant,  the  contract  for  payment  for  the  use  of  the  land  should 
be  enforced  by  the  administrator  of  a  deceased  landlord  who  died  be- 
fore the  contract  was  performed,  there  being  a  distinction  in  this  re- 

"1  Piatt    on    Gov.    527-533;    Craw-  ^""Kendall    v.    Garland,    5    Gush. 

ford  v.  Chapman,  17  Ohio  449.  (Mass.)    74;    Patten    v.    Deshon,    1 

"=  Harrison  v.  Steele,  4  H.  &  McH.  Gray  (Mass.)   325;  Hunt  v.  Thomp- 

(Md.)  218.    But  see  Wells  v.  Gowles,  son,  2  Allen  (Mass.)  341;  Vin.  Abr. 

4  Conn.  182.  "Estate"  B,  b,  18  pi.  10;  Bacon  Abr. 

1"^  Smith  v.  Harrison,  42  Ohio  St.  "Rent"  M;  Gilbert  on  Rents,  165-6; 

180.     Where   a   house   and    lot   and  4  Gruis.   Dig.  Tit.  28,  ch.  3,   §§  19, 

furniture  were  leased  and  the  lessee  20,  21,  31;   Allen  v.  Bryan,  5  B.  & 

covenanted    to    pay    rent    for    the  C.  512;  Farley  v.  Craig,  11  N.  J.  L. 

house  and  furniture,  an  assignment  262,  273;   Ryerson  v.  Quackenbush, 

of  the  house  and  lot  alone  without  26  N.   J.  L.  236;    Demarest  v.  Wil- 

the   furniture    will   not   entitle   the  lard,  8  Cow.    (N.  Y.)    206;    Willard 

assignee  to  bring  an  action  in  his  v.  Tillman,  2  Hill  (N.  Y.)  274. 

own  name  for  the  rent.     For  there  "=Wineman    v.    Hughson,    44    111. 

is   not   privity   of  estate   when   the  App.  22 ;  Crosby  v.  Loop,  13  111.  625. 

furniture    is    not    assigned.      Jones  '»« Bridgham  v.   Tileston,   5   Allen 

V.  Smith,  14  Ohio  606.  (Mass.)  371. 


I 


763  ACTIONS  TO  RECOVER  REXT.  [§  659 

spect  between  such  a  contract  and  one  for  the  payment  of  rent.^^^  For 
ordinarily  rent  is  a  chattel  real  and  goes  to  the  heir  and  not  to  the 
administrator  in  case  of  a  landlord's  death.^"^ 

§  659.  A  sub-tenant  is  not  answerable  to  the  original  lessor  for  the 
rental,  as  there  is  neither  privity  of  estate  nor  privity  of  contract  be- 
tween them,  and  therefore  such  sub-tenant  is  not  subject  to  an  action 
of  assumpsit  for  use  and  occupation  by  the  original  lessor.  ^"^  An 
undertenant  is  not  liable  to  the  landlord  directly  for  rent  in  any  form 
of  action,  but  an  assignee  of  the  term  is  liable  either  in  debt  or  on 
covenant.^^"  As  long  as  a  valid  joint  lease  remained  in  force  and  had 
not  been  assigned,  the  lessor  could  not  recover  in  an  action  for  use 
and  occupation  of  the  leased  premises,  brought  against  one  lessee  and 
a  third  party  jointly  for  rent  during  the  period  covered  by  the  lease. 
The  premises  were  held  under  the  written  lease  and,  until  that  instru- 
ment was  cancelled,  no  implied  contract  by  other  parties  to  pay  rent 
would  arise. ^^^ 

It  is  a  reasonable  rule  of  the  law,  and  well  settled,  that  a  tenant,  for 
a  certain  term,  or  for  life,  who  has  underlet,  has  no  right  to  surrender 
his  lease  to  the  prejudice  of  the  sub-tenant.^ ^-  A  landlord  could, 
however,  recover  from  a  sub-lessee  for  injury  done  to  the  reversion  by 
removing  a  building  from  the  premises.  ^^^  The  surrender  of  the 
main  term  of  a  leasehold  estate  totally  extinguishes  it,  and  with  it  any 
sub-terms;  or  rather  such  surrender  would  extinguish  any  sub-term 
as  a  necessary  result  of  the  extinction  of  the  main  term,  but  for  an- 
other rule  of  law  which  has  been  raised  for  the  protection  of  under- 
tenants, to  wit :  that  their  rights  will  not  be  destroyed  or  impaired  by 
a  surrender  of  the  main  lease ;  and  yet  the  surrenderee  may  not  sue  the 
undertenant  for  rent  or  on  any  other  covenant.  This  rule  is  botli 
ancient  and  technical  but  has  been  laid  down  by  all  text-writers  and 

^"  Autrey  v.  Autrey,  94  Ga.  579,  20  "» Dartmouth  College  v.  Clough,  8 

S.  E.  431.  N.  H.  22. 

i°«  Dixon  V.  Niccolls,  39  111.  372.  i"  Doty  v.  Gillett,  43  Mich.  203,  5 

I'^Kiersted  v.  Orange  &c.  R.  Co.,  N.  W.  89. 

€9  N.  Y.  343;  Way  v.  Holtan,  46  Vt.  "=  1  Shep.  Touch.  301;   Adams  v. 

184;   Holmin  v.  DeLin,  30  Ore.  428,  Goddard,  48  Me.  212;   Eten  v.  Leys- 

47  Pac.  708;  Campbell  v.  Stetson,  2  ter,  60  N.  Y.  252;  Hessel  v.  Johnson, 

Mete.     (Mass.)     504;     Shattuck     v.  129  Pa.  St.  173,  18  Atl.  754,  15  Am. 

Lovejoy,  8  Gray  (Mass.)  204;  Pierce  St.  716;    Brown  v.  Butler,  4  Phila. 

v.  Minturn,  1  Cal.  470;   Giddings  v.  (Pa.)  71;  McDonald  v.  May,  96  Mo. 

Felker,   70   Tex.   176,   7   S.   W.   694;  App.  236,  69  S.  W.  1059;  see  §  552. 

Knight  V.  Old,  2  Civ.  Cas.  Ct.  App.,  '"  Winston    v.    President   &c.,    28 

§  77.  Miss.  118. 


I    660]  RENT  AXD  ITS  RECOVERY.  764 

followed  in  all  old  judgments  on  the  subject.^^*  Both  judges  and  com- 
mentators have  deplored  its  hardship  as  to  landlords,  because  it  some- 
times operates  to  cut  them  out  of  their  rent,  while  permitting  a  sub- 
tenant to  retain  the  premises,  and  it  has  been  corrected  by  statute  in 
England.^^^  In  a  Pennsylvania  case  an  attornment  by  the  sub-ten- 
ant to  the  original  lessor  on  the  terms  of  the  sub-lease,  after  the  sur- 
render by  the  mesne  tenant,  was  presumed  in  order  to  enable  the 
owner  to  get  his  rent,  thus  repudiating  the  old  doctrine  that  the  un- 
dertenant may  keep  possession  without  rendering  rent.^^® 

§  660.  Where  the  fact  of  an  agency  is  not  disclosed  at  the  time  an 
agent  enters  into  a  contract  of  lease  for  his  principal,  if  the  lease  is 
not  under  seal,  it  is  the  ordinary  case  of  a  contract  not  under  seal, 
made  by  an  agent  in  his  own  name  on  behalf  of  an  undisclosed  prin- 
cipal; and  it  is  not  to  be  doubted  that  an  action  can  be  maintained 
upon  it  for  rent  in  the  name  of  the  principal."^  The  rule  is  well 
settled,  that  if  the  agent  possesses  due  authority  to  make  a  written 
contract  not  under  seal,  and  he  makes  it  in  his  own  name,  whether 
he  describes  himself  as  agent  or  not,  or  whether  the  principal  be 
known  or  unknown,  his  principal  will  be  made  liable  and  will  be  en- 
titled to  sue  thereon.^^® 

But  the  rule  that  an  unnamed  and  unknown  principal  shall  stand 
liable  for  the  contract  of  his  agent,  does  not  apply  to  a  demise  under 
seal.  The  relation  between  the  owner  of  land  and  those  who  occupy 
it  is  of  a  purely  legal  character;  and  the  fact  that  a  lessee  takes  a 
lease  under  seal  for  an  unnamed  principal,  but  in  his  own  name,  will 
not  render  the  unnamed  principal  liable  for  the  rent.^^^  Such  a  lease 
would  not  be  binding  on  the  principal,  although  the  fact  of  the  agency 
was  recited  in  it,  and  although  it  appeared  by  extrinsic  evidence  that 
the  lessee  acted  as  agent,  and  if  the  principal  occupied  during  the  term 
without  an  assignment,  he  would  be  presumed  to  have  entered  as  sub- 
tenant.^20  jt  was  held  in  one  case  that  if  the  recital  of  the  agency 
itself  shows  that  it  was  not  merely  descriptive  of  the  person,  it  will 

"* McDonald  v.  May,  96  Mo.  App.  (Mass.)    371;    Fenly   v.    Stewart,   5 

236,  69  S.  W,  1059;  Webb  v.  Russell,  Sandf.   (N.  Y.)   101. 

3  Term  R.  393,  403;  Krider  v.  Ram-  "^  Nicoll  v.  Burke,  78  N.  Y.  580; 

say,  79  N.  Car.  354.  Briggs  v.  Partridge,  64  N.  Y.  357. 

"=  McDonald  v.  May,  96  Mo.  App.  ""  Sheldon  v.  Dunlap,  16  N.  J.  L. 

236,  69  S.  W.  1059.  245;    Borcherling  v.  Katz,  37  N.  J. 

"«Hessel  v.  Johnson,  129   Pa.  St.  Eq.  150;   Nicoll  v.  Burke,  78  N.  Y. 

173,  18  Atl.  754,  15  Am.  St.  716.  580;  Elwell  v.  Shaw,  16  Mass.  42. 

"'Bryant  v.  Wells,  56  N,  H.  152;  ^^oRiersted  v.  Orange  &c.  R.   Co., 

Huntington      v.      Knox,      7      Cush.  69  N.  Y.  343,  1  Hun  151. 


7G5  ACTIONS  TO  RECOVER  REXT,  [§  G61 

be  regarded  as  the  lease  of  the  principal,  who  is  chargeable  upon  it.^^^ 
Wliere  a  lease  was  taken  in  trust  for  a  corporation  thereafter  to  be 
formed,  and  the  corporation  was  formed  and  received  an  assignment 
of  the  lease,  a  liability  in  equity,  on  the  part  of  the  corporation,  to 
pay  rent  to  the  lessor  arose.^^" 

If  an  agent  makes  a  lease  in  his  own  name,  and  executes  it  in  his 
own  name,  though  the  rent  is  reserved  to  his  principal,  and  all  the 
covenants  purport  to  be  made  with  his  principal,  the  principal  cannot 
maintain  an  action  upon  it,  for  the  reason  that  on  a  deed  inter  partes 
no  person  can  maintain  an  action  except  a  party  to  it.^^^ 

In  Illinois  there  is  a  statute  the  effect  of  which  is,  so  far  as  it  re- 
lates to  the  form  of  action  and  who  may  have  the  benefit  of  covenants, 
to  take  the  seals  off  a  lease.  The  rule  that  where  one  person,  for  a 
valuable  consideration,  makes  a  promise  to  another  for  the  benefit  of 
a  third  person,  such  third  person  may  maintain  an  action  upon  it,  is 
by  the  statute  extended  to  cases  where  the  contract  is  under  seal.^-* 

§  661.  A  covenant  to  pay  rent  creates  no  debt  or  legal  demand  for 
rent  till  the  time  stipulated  for  payment  arrives.^-^  Although  there 
be  a  lease  which  may  result  in  a  claim  for  rent,  which  \A\\  constitute 
a  debt,  yet  no  debt  accrues  until  such  enjoyment  has  been  had.^-® 
Yet  if  the  action  for  rent  be  special  assumpsit  on  an  express  agree- 
ment to  pay  rent,  the  occupancy  of  the  defendant  is  immaterial,  and 
sucli  an  action  may  be  maintained  at  common  law,^-'^  in  place  of  the 
action  of  assumpsit  for  use  and  occupation. 

In  case  a  tenant  has  not  entered  into  possession  at  all,  under  his 
lease  or  agreement,  either  in  person  or  by  an  undertenant  or  agent, 
assumpsit  for  use  and  occupation  will  not  lie  against  him,  but  the 
remedy,  generally,  is  upon  the  lease  or  agreement.^^^    But  under  a 

^^  Avery    v.    Daugherty,    102    Ind,  543;  Perry  v.  Aldrich,  13  N.  H.  343; 

443.  Countess  of  Plymouth  v.  Throgmor- 

'"Van  Schaick  v.   Third   Ave.  R.  ton,  1  Salk.  65. 

Co.,  8  Abb.  Pr.  (N.  Y.)  380,  30  Barb.  ^^^  Bordman    v.    Osborn,    23    Pick. 

189,  49  Barb.  409,  38  N.  Y.  346.  (Mass.)   295;  Wood  v.  Partridge,  11 

'"' Borcherling   v.    Katz,    37    N.    J.  Mass.  488. 

Eq.  150;  Sheldon  v.  Dunlap,  16  N.  J.  '="  Stier    v.    Surget,    10    S.    &    M. 

T  .  245;   Berkeley  v.  Hardy,  5   B.  &  (Miss.)  154. 

C.  355.  i^^Tully    v.    Dunn,    42    Ala.    262; 

'=^Adam    v.    Arnold,    86    111.    185;  Wood  v.  Wilcox,   1   Denio    (N.   Y.) 

Dean     v.     Walker,     107     111.     540;  37;  Beach  v.  Gray,  2  Denio  (N.  Y.) 

Harmes  v.  McCormick,  30  111.  App.  84;   Croswell  v.  Crane,  7  Barb.   (N. 

125.  Y.)   191. 

"=  Russell    v.    Fabyan,    28    N.    H. 


§    661]  KEXT  AND  ITS  RECOVERY.  766 

joint  lease  the  occupation  of  one  is  enough  to  make  both  lessees  liable 
in  an  action  of  debt  for  use  and  occupation.^^^  And  after  the  lessee 
has  occupied  the  demised  premises  he  cannot  set  up  the  invalidity  of 
the  lease  under  which  he  held  as  a  defense  to  an  action  for  the  rent.^^** 

In  the  absence  of  a  covenant  to  pay  rent,  as  where  a  plaintiff  in  an 
action  of  use  and  occupation  relies  on  an  oral  promise,  the  liability 
of  the  tenant  must  depend  upon  the  actual  use  and  occupation  of  the 
premises,  and  there  can  be  no  recovery  except  for  what  was  actually 
used.^^^  But  if  the  lease  be  valid,  the  lessee  cannot  escape  his  liability 
for  rent  by  relinquishing  or  abandoning  the  premises.^^^  A  tenant 
from  year  to  year  would  be  liable  for  a  full  year's  rent  although  he 
did  not  occupy  for  a  full  year.^^^ 

In  the  absence  of  an  express  agreement  in  the  lease  or  a  local  cus- 
tom to  the  contrary,  rent  is  not  due  till  the  end  of  the  term,  and  this 
means,  in  the  case  of  a  tenancy  from  year  to  year,  that  the  annual 
rent  is  not  payable  till  the  end  of  the  year  of  occupancy.^^*  This  rule 
that  rent  is  not  due  and  payable  until  the  end  of  the  term,  in  the 
absence  of  agreement  to  the  contrary,  is  well  established,  resting  on 
the  principle  that  rent  is  not  due  till  it  is  earned.^^^  Eent  payable 
under  a  lease  on  the  twentieth  of  every  month  would  ordinarily  be 
rent  for  the  past  month,  and  not  rent  in  advance. ^^^    Specifying  ccr- 

1^  Kendall    v.    Garland,    5    Gush.  Wend.  (N.  Y.)  480;  Bordman  v.  Os- 

(Mass.)   74.  born,    23    Pick.     (Mass.)     295;     Me- 

"» Mayor   &c.   v.   Huntington,   114  nough's   Appeal,   5   W.    &   S.    (Pa.) 

N.   Y.   631,  21   N.  E.   998,   23   N.   Y.  432;    Boyd   v.    McCombs,   4    Pa.    St. 

St.  912,  2  Silv.  272,  affirming  1  N.  146;  McFarlane  v.  Williams,  107  111. 

Y.  St.  785.  33;   Bell  v.  Norris,  79  Ky.  48;   Dur- 

^'1  Herrmann    v.    Curiel,    3    N.    Y.  yee  v.  Turner,  20  Mo.  App.  34;  Ridg- 

App.  Div.  511.  ley  v.  Stillwell,  27  Mo.  128;   Ostner 

"^Andreon  v.  Hawkins,  4  H.  &  J.  v.  Lynn,  57  Mo.  App.  187;   Gray  v. 

(Md.)  319.  Ghamberlain,  4  G.  &  P.  260;   Goom- 

^^  Lofland     v.     Emory,     2     Harr.  ber  v.  Howard,  1  C.  B.  440,  50  E.  C. 

(Del.)   297.     The  removal  of  a  ten-  L.    440.     In    action   for   rent   on   a 

ant,  after  notice  to  quit  his  yearly  monthly  letting,  landlord  can  only 

tenancy,  at  improper  time  does  not  recover  that  amount  due  at  the  end 

make  due  rent  which  would  not  be  of    a    monthly    term    prior    to    the 

due  then  by  the  terms  of  the  lease,  service    of  •  the    writ.      Stanley    v. 

there    being    no    surrender    of    the  Turner,  68  Vt.  315,  35  Atl.  321. 
premises   by   the    defendant.     Ams-         '^  Gastleman  v.  Du  Val,  89  Md.  657, 

den  V.  Atwood,  67  Vt.  289,  31  Atl.  43  Atl.  821;    Gameron  v.  Little,  62 

448,  s.  c.  69  Vt.  527,  38  Atl.  263.  Me.  550;  Tignor  v.  Bradley,  32  Ark. 

I'*  Elmer   v.    Sand    Creek    Tp.,    38  781. 
Ind.  56;   Indianapolis  &c.  R.  Go.  v.         "'Gastleman   v.    Du   Val,    89    Md. 

First  Nat.  Bank,  134  Ind.  127,  33  N.  657,  43  Atl.  821. 
E.    676;    Edwards    v.    Glemons,    24 


767  ACTIONS  TO  EECOVER  RENT.  [§  G62 

tain  time  for  payment  does  not  affect  the  nature  of  the  rent  as  an 
annual  income.  It  does  not  change  an  annual  into  a  semi-annual  rent 
that  it  is  payable  in  two  instalments  at  periods  of  six  months.^^^  A 
clause  in  a  lease  requiring  the  rent  to  be  paid  in  monthly  instalments, 
the  first  to  be  paid  on  the  first  day  of  the  term,  does  not  require  pay- 
ment in  advance  for  each  succeeding  month.  Unless  it  is  clearly  pro- 
vided that  rent  shall  be  paid  in  advance,  the  general  rule  as  to  time 
of  payment  would  govern.^^^ 

If  by  the  terms  of  a  lease  rent  is  due  on  certain  days,  the  time  of 
payment  is  not  extended  nor  the  right  to  sue  in  case  of  non-payment 
postponed  by  the  provision  that  the  landlord  may  take  possession  of 
the  premises  after  sixty  days'  default  of  payment.^^^  Where  the  com- 
putation of  time  ending  in  a  holiday  and  the  payment  of  rent  falling 
due  on  a  holiday  was  covered  by  statute,  but  the  matter  of  rent  and 
its  payment  was  unaffected  by  legislation,  it  was  held  that  rent  fall- 
ing due  on  a  legal  holiday  other  than  Sunday  was  payable  on  the  day 
it  fell  due,  in  spite  of  its  being  a  holiday.^**' 

A  tenant  has  the  entire  rent  day  during  which  to  pay  rent,  so  that 
he  cannot  be  in  default  till  after  that  day  has  passed. ^*^  So,  where 
rent  is  made  payable  at  stated  intervals,  in  advance,  the  tenant  has 
the  whole  of  the  first  day  of  each  succeeding  interval  of  time  in  which 
to  make  the  payment.^ *^  A  lease  demised  a  term  of  years  "from  the 
first  day  of  September  now  next  ensuing,"  and  reserved  a  rent  payable 
**by  equal  quarter-yearly  payments,"  the  first  payment  "to  be  made  on 
the  first  day  of  December  now  next  ensuing."  Under  such  a  provision 
it  was  held  that  rent,  though  payable  December  first,  was  not  legally 
due  till  midnight  of  that  day,  and  could  not  be  garnisheed  until 
then.  1*3 

§  662.  An  undertaking  in  writing,  attached  to  a  lease  between 
landlord  and  tenant,  by  which  a  third  person,  without  expressing  any 
consideration,  agrees  to  become  surety  for  the  prompt  payment  of 
rent,  is  void  as  within  the  statute  of  frauds.  The  relation  of  landlord 
and  tenant  is  not  established  between  the  surety  and  the  lessor,  so  the 

>^  Irving  V.  Thomas,  18  Me.  418.  558,  53  N.  E.  92,  affirming  14  App. 

^^'Lsjebe  v.  Nicolai,  30  Ore.  364,  48  Div.  310. 

Pac.  172.  '"  Dalton    v.    Laudahn,    27    Mich. 

"^Rowe  V.  Williams,  97  Mass.  163;  529. 

Van  Rensselaer  v.  Jewett,  5  Denio  ^*^  Sherlock  v.  Thayer,  4  Mich.  355. 

(N.   Y.)    121,   131;    Clun's   Case,   10  "' Ordway  v.  Remington,  12  R.  I. 

Coke  127,  129a.  319. 

""Walton   v.    Stafford,   162   N.   Y. 


«l 


S    6631  RENT  AND  ITS  KECOVERT.  768  J 

"  J  i,S 

I 

contract  is  to  answer  for  the  debt  of  another,  and  if  there  is  no  con- 
sideration expressed,  it  is  void  by  the  statute  of  frauds.^**  If  by  the 
terms  of  a  guaranty  the  liability  of  a  guarantor  is  primary  and  for 
all  the  rent,  he  is  not  entitled  to  notice  of  default  by  the  lessee.  In 
any  event,  it  is  necessary  to  show  loss  or  injury  by  a  want  of  notice. 
If  the  guarantor  could  not  have  profited  by  notice,  and  has  lost  noth- 
ing for  the  want  of  notice,  these  is  no  reason  why  he  should  corn- 
plain.^*^  The  general  rule  is  that  one  entering  into  a  contract  of 
guaranty  must  perform  all  its  stipulations,  unless  he  can  show  the 
obligee  has  been  guilty  of  some  ladies  by  which  he  has  been  injured.^*® 

A  lease  and  a  guaranty  indorsed  upon  it  must  be  taken  as  one  en- 
tire instrument.  Where  the  word  "within"  is  used  in  the  guaranty, 
it  is  fairly  inferable  that  it  was  written  on  the  outside  page  of  the 
lease,  else  there  could  be  no  application  of  the  word  "within."  Tech- 
nically there  are  two  instruments,  but  practically  there  is  but  one. 
So,  if  the  covenantee  is  sufficiently  designated,  this  enables  him  to 
maintain  the  action.^'*'' 

By  the  terms  of  a  lease,  in  one  case,  the  lessee  promised  to  pay  the 
rent  of  eight  hundred  dollars  for  the  term  of  one  year,  and  also  the 
rent  as  above  stated  for  such  further  time  as  the  lessee  may  hold  the 
same.  Upon  the  back  of  the  lease,  and  before  the  delivery  thereof,  a 
third  person  guaranteed  to  the  lessor  the  payments  of  the  rent  therein 
stipulated.  This  guaranty  was  held  to  include  the  payments  which  be- 
came due  after  the  expiration  of  the  term  of  one  year.  The  holding 
over  was  continuous,  and  without  any  new  contract  between  the  lessor 
and  lessee;  no  change  was  made  to  take  the  case  out  of  what  was 
provided  for  in  the  lease.^*^  But  the  surety's  obligation  is  only  co- 
extensive with  that  of  the  lessee,  and  as  soon  as  the  occupation  ceased 
the  liability  of  the  surety,  along  with  that  of  the  lessee  himself,  would 
come  to  an  end.^*^ 

§  663.  Alterations  in  amount  of  rent  and  mode  of  payment. — Pay- 
ment of  a  money  rent  may  be  by  services  rendered,  on  an  express 
agreement  to  that  effect ;  and  it  does  not  alter  this  result  that  a  parol 
promise  to  accept  services  in  payment  of  rent  is  made  before  the  lease 
is  executed.    Such  a  promise  would  not  be  binding  while  executory, 

^"Hutson  v.  Field,  6  Wis.  407.  457;   Farmers'  &c.  Bank  v.  Kerche- 

"=  Voltz  V.  Harris,  40  111.  155.    But     val,  2  Mich.  505. 
see   White   v.   Walker,   31    111.    422,        ^"  Otto  v.  Jackson,  35  111.  349. 
438.  '*«Rice  v.  Loomis,  139  Mass.  302, 

"«Rhett  V.   Poe,   2   How.    (U.   S.)     IN.  E.  548. 

"* Kendall  v.  Moore,  30  Me.  327. 


769  ACTIONS  TO  RECOVER  RENT.  [§  663 

but  if  the  services  are  rendered  and  accepted  in  satisfaction,  that 
concludes  the  lessor.^^**  Where  a  lease  for  one  year,  providing  for  the 
payment  of  the  entire  rent  on  a  day  during  the  term,  also  provided 
for  the  performance  of  certain  work  by  the  lessee  at  a  fixed  rate  of 
compensation,  and  for  the  application  of  the  earnings  therefrom  on 
the  rental,  the  lessee  was  entitled  to  the  deduction  of  compensation  for 
all  labor  performed  by  him  during  the  term,  whether  before  or  after 
the  date  fixed  for  the  payment  of  the  rent.^^^ 

A  clause  reserving  rent  reckoned  by  profits  made  would  be  liberally 
construed,  and  under  a  lease  of  a  dam,  reserving  as  rent  one-half  of 
all  tolls  and  money  that  may  be  earned  by  the  use  of  said  dam,  the 
lessor  was  held  to  be  entitled  to  one-half  of  all  earnings  in  running 
and  driving  logs  which  could  fairly  be  traced  to  the  benefits  of  the 
dam."2 

An  alternate  provision  in  a  lease  of  a  farm  for  a  cash  rental,  that 
in  case  of  injury  to  crops  by  wind  the  lessee  may  pay  a  crop-rent  of 
one-third  of  the  crops  grown,  must  be  availed  of  by  a  tender  of  the 
crops  at  the  proper  time ;  and  after  the  lessee  has  put  this  out  of  his 
power  by  sub-letting  for  a  cash  rent,  he  loses  the  benefit  of  the  pro- 
vision. A  tender  of  the  crop-rent  would  have  discharged  the  lessee's 
liability  on  his  rent  notes,  but  he  did  not  make  such  tender,  and  never 
had  it  in  his  power  to  make  it.^^^ 

In  a  letting  for  a  series  of  years,  the  leading  idea  as  to  rent  is  the 
yearly  rental.  Its  subdivision  into  frequent  payments  is  a  matter  of 
mathematics,  and  a  secondary  subject  of  thought,  it  being  common 
knowledge  that  in  the  great  majority  of  leases  and  in  negotiations  for 
them  the  rent  stated  and  talked  about  is  the  yearly  rent.  Thus,  in 
case  a  lease  is  made  paying  a  gross  yearly  sum,  and  the  tenant  cove- 
nants to  pay  in  quarterly  instalments,  the  unnecessary  addition  of  the 
quarterly  sums  payable  would  not  control  if  it  difl'ered  from  the  sum 
first  stated,  such  difference  being  manifestly  a  clerical  error.^^* 

In  a  lease  of  rooms  in  a  building  at  a  stipulated  rental,  it  was 
agreed  that  if  any  rooms  in  the  building  were  rented  for  a  less  amount 
than  at  that  time  "such  reduction  shall  also  be  made  to  lessee  for 
term  of  this  lease."   It  was  urged  that  there  Avould  not  be  a  reduction 

>'"  Oliver  v.  Phelps,  21  N.  J.  L.  '"  Dassance  v.  Cold,  lOl'  Iowa  610, 
597.  70  N.  W.  719. 

"1  Crawford  v.  Armstrong,  58  Mo.  "^  Smith  v.  Blake, '88  Me.  241,  33 
App.  214.  Atl.  992. 

"^  Rayburn  v.  Mason  Lumber  Co., 
57  Mich.  272,  23  N.  W.  811. 
Jones  L.  &  T,— 49 


1 

§§    66-i,    665]  EEXT  AXD  ITS  RECOVERY.  770 

"for  term  of  this  lease/'  according  to  the  covenant,  unless  the  lessees 
were  paid  back  a  portion  of  the  rent  previously  collected.  But  this 
suo-gestion  failed,  because  there  was  no  covenant  to  refund  any  portion 
of  the  rent  paid,  and  the  covenant  relied  upon  had  reference  to  rent 
to  accrue  during  the  remainder  of  the  term,  after  other  rooms  had 
been  rented  for  a  less  amount.^^^ 

§  664.  A  power  of  attorney  contained  in  a  lease  to  confess  judg- 
ment for  rent  due  and  interest  is  valid,  and  though  it  is  forbidden  to 
include  an  attorney's  fee,  such  a  judgment  would  be  valid  for  the 
balance  after  the  amount  allowed  as  attorney's  fee  had  been  re- 
mitted.^^^  The  use  of  the  singular  number,  "party  of  the  second 
part,"  when  there  are  two  lessees,  does  not  invalidate  a  power  to  con- 
fess judgment  when  the  lease  proceeds  to  authorize  any  attorney  to 
enter  "their"  appearance  and  confess  judgment.^^' 

One  who  leases  a  place  for  the  practice  of  prostitution,  and  after- 
wards receives  rent  therefor  and  permits  the  house  to  be  so  used,  is 
guilty  of  a  violation  of  the  statute  in  Illinois,  and,  on  principles  of 
public  policy,  ought  not  to  be  permitted  to  invoke  or  obtain  the  aid  of 
the  courts  to  enforce  stipulations  in  the  contract  of  letting  which  will 
enable  him  to  secure  a  judgment  by  confession  for  rent  due  for  such 
.  use  of  the  house.  The  lessee,  in  such  case,  even  though  in  pari  delicto 
with  the  lessor,  ought  not  to  be  denied  or  deprived  of  the  privilege  of 
presenting  the  defense  that  the  lease  was  illegal  because  of  its  being 
in  violation  of  the  public  law  of  the  state.  Such  a  defense  is  not  al- 
lowed on  the  ground  that  the  person  presenting  it  is  entitled  to  relief, 
but  upon  principles  of  public  policy  and  to  conserve  the  public  wel- 
fare.^^^ 

§  665.  The  only  defenses  against  an  action  for  rent  reserved  in  a 
valid  lease  are,  eviction,  release,  and  surrender  of  the  term.  The 
landlord's  failure  to  allow  lessee  to  continue  to  occupy  under  a  lease 
is  not  a  defense  to  an  action  by  the  landlord  for  rent  previously  ac- 
crued. At  most  the  tenant  can  only  claim  a  set-off  to  the  extent  he 
was  injured  by  the  landlord's  breach  of  agreement.  ^^^    In  an  action 

i^Copeland  V.  Goldsmith,  100  Wis.  "^Fields   v.   Browu,    188    111..  Ill, 

436,  76  N.  W.  358.  58  N.  E.  977,  reversing  89   111.  App. 

15^  Fields   v.    Brown,    188    111.    Ill,  287;    Goodrich    v.    Tenney,    144    111. 

58  N.  E.  977,  reversing  89  111.  App.  422,  33  N.  E.  44. 

287;    Agnew  v.  Sexton,  86  111.  App.  »» Hutchins  v.  Hodges,  98  N.  Car. 

274.  404,  4  S.  E.  46. 

'"Frank  v.  Thomas,  35   111.  App. 
547. 


f 


771  ACTIONS  TO  RECOVER  RENT.  [§  (j66 

for  rent,  the  defense  of  surrender  accepted  by  the  landlord  is  not 
inconsistent  with  the  defense  of  constructive  eviction.  It  is  quite 
possible  for  the  lessee  to  have  abandoned  or  surrendered  possession 
of  the  premises  because  of  their  untenantable  condition,  and  for  the 
landlord  to  have  accepted  the  surrender  and  resumed  possession.  The 
idea  that  there  is  any  inconsistency  in  the  defenses  arises  from  the 
use  of  the  term  "constructive  eviction."^*"' 

An  early  statute  in  Illinois  permitting  the  defense  of  want  of  con- 
sideration to  be  set  up  in  actions  on  certain  instruments  was  held  not 
to  permit  such  a  defense  to  be  made  in  a  suit  on  a  written  lease.  A 
plea  of  no  consideration  in  an  action  on  a  sealed  instrument  is  bad  in 
Illinois  unless  it  is  such  an  instrument  as  is  entitled  negotiable  under 
the  statute."^ 

Such  possession  of  the  leased  premises  by  the  lessor  as  would  sus- 
tain the  lease  is  prima  facie  established  by  its  introduction  in  evi- 
dence. In  the  absence  of  proof  to  the  contrary,  it  will  be  presumed 
that  the  lease,  when  executed,  is  valid  and  binding  upon  the  parties. 
The  burden  of  showing  facts  which  would  avoid  the  lease  is  upon  the 
lessee.  It  is  not  necessary  for  the  lessor  to  allege  he  was  in  possession 
at  the  time  the  lease  was  executed.  After  showing  that  the  lease  was 
in  fact  executed  and  that  the  rent  due  had  not  been  paid,  he  has  made 
out  a  prima  facie  case.^®^ 

§  666.  Interest  is  recoverable  as  of  right  upon  contracts  In  writing 
to  pay  money  upon  a  day  certain ;  as  upon  bonds,  bills  of  exchange,  or 
promissory  notes,  though  there  be  no  express  reservation  of  interest. 
Applying  this  principle  to  a  covenant  for  the  payment  of  a  specific 
sum  of  rent  upon  a  particular  day,  it  is  right  that  the  jury  calculate 
interest  on  the  same  up  to  the  time  of  rendering  their  verdict.  ^*'^  It 
is,  indeed,  true  that  interest  on  rent  in  arrear  cannot  be  distrained 
for — the  distress  can  only  be  for  the  rent  itself ;  but  the  rule  is  differ- 
ent in  regard  to  an  action  of  debt.^*^* 

""Minneapolis    Coop.   Co.   v.   Wil-  Clark  v.  Barlow,  4  Johns.    (N.  Y.) 

liamson,  51  Minn.  53,  52  N.  W.  986.  183;    Crane    v.    Hardman,    4    B.    D. 

"^Hallberg    v.    Brosseau,    64    111.  Smith     (N.     Y.)     448;     Dorrill     v. 

App.  520.  Stephens,   4   McCord    (S.   Car.)    59; 

"=  Collins  V.  Hall,  5  Wash.  366,  31  Gill  v.  Patton,  1  Cranch  C.  C.  188, 

Pac.  972.  10  Fed.  Cas.  No.  5430;  Obermyer  v. 

"==  Dennison  v.  Lee,  6  G.  &  J.  (Md.)  Nichols,  6  Binn.  (Pa.)  159;  McQues- 

383;  Newson  v.  Douglass,  7  H.  &  J.  ney  v.  Hiester,  33  Pa.  St.  435.     See 

(Md.)    417;    Elkin    v.    Moore,    6    B.  Wise  v.  Ressler,  2  Cranch  C.  C.  199, 

Mon.    (Ky.)    462;    Honore    v.    Mur-  30  Fed.  Cas.  No.  17912. 

ray.  3  Dana   (Ky.)   31;   Gutherie  v.  ^"^  White  v.  Walker,  31  111.  422. 
Stockton,  5   Harr.    (Del.)    123,  204; 


§'   666]  EENT  AND  ITS  RECOVERY.  772 

Interest  on  rent  is  recoverable  as  damages  only,  except  when  pro- 
vided for  in  the  bond  or  agreement,  and  consequently  in  case  the 
postponement  was  by  consent  of  the  lessor,  no  interest  could  be  re- 
covered, for  no  damage  would  result  to  the  consenting  party.^®^ 
Where  rent  is  payable  in  kind,  interest  may  be  recovered  during  the 
time  the  lessee  is  in  default  in  paying,  provided  the  amount  of  pro- 
duce and  the  day  for  delivery  were  stipulated  in  the  agreement. ^"^ 

In  the  absence  of  statute  in  regard  to  the  allowance  of  interest,  a 
party  who  sues  for  the  arrearages  of  rent  is  not  entitled,  as  a  matter 
of  course,  to  interest  on  the  sum  found  to  be  due.  It  is,  however, 
understood  to  be  the  general  practice  to  allow  interest  on  open  ac- 
counts, when  by  the  usual  course  of  dealings  or  by  express  agreement 
a  certain  time  is  fixed  for  payment;  and  generally  in  all  cases  where 
there  has  been  an  unjust  detention  of  money  of  another  against  his 
will.  In  these  cases  the  interest  allowed  by  the  jury  is  regarded  as 
compensation  for  the  damage  sustained  by  the  plaintiff  in  conse- 
quence of  the  breach  of  contract  by  the  defendant.  But  the  allow- 
ance is  not  as  a  matter  of  strict  legal  right,  as  in  the  cases  expressly 
provided  for  by  statute.  A  similar  rule  may  be  adopted  in  equity, 
giving  a  discretion  to  the  chancellor  to  allow  or  disallow  interest,  ac- 
cording to  the  circumstances  of  the  case.^"'^  Where  instalments  of 
rent  fell  due  weekly,  interest  has  been  allowed  on  each  instalment 
from  the  date  it  was  payable.^"^ 

The  Virginia  Supreme  Court  considered  the  question  of  allowing 
interest  on  rent  at  great  length  in  1808,  delivering  opinions  seriatim, 
with  the  result  that  two  judges  held  that  interest  could  not  be  allowed 
in  the  absence  of  special  circumstances,  while  the  third  judge  thought 
the  giving  of  interest  was  in  the  discretion  of  the  jury  as  an  assess- 
ment of  damages.  The  reason  assigned  by  the  majority  was  that  no 
man  shall  take  advantage  of  his  own  laches  or  neglect;  therefore  the 
landlord  shall  not  have  interest  for  rent  arrear,  because  he  had  the 
effectual  remedy  of  distress  whenever  he  chose  to  use  it.  The  argu- 
ment of  the  dissenting  judge  was  that  interest  is  but  a  fixed  measure 
of  damages;  and  damages  are  defined  to  be  a  compensation  given  by 

"=Lush  V.  Druse,  4  Wend.  (N.  Y.)  Van  Rensselaer  v.  Jewett,  5  Denio 
313.  (N.  Y.)  121,  135. 

^8«Van  Rensselaer  v.  Jones,  2  ^"  Howcott  v.  Collins,  23  Miss. 
Barb.   (N.  Y.)   643;  Van  Rensselaer     398. 

V.   Plainer,   1   Johns.    (N.   Y.)    276;         '«' Oliver  v.  Moore,  53  Hun  (N.  Y.) 

472,  6  N.  Y.  S.  413. 


773  APPOKTIONMENT.  [§667 

a  jury  for  an  injury  or  wrong,  so  the  withholding  of  rent,  being  an 
injury  done  to  the  landlord,  ought  to  be  recompensed  in  damages.^**® 

By  statute  in  Illinois,  interest  is  properly  allowable  where  an  ac- 
count has  been  liquidated  between  the  parties,  and,  by  an  agreement 
to  pay  a  fixed  and  stipulated  sum  for  rent,  the  amount  thus  stipulated 
becomes  liquidated  by  the  terms  of  the  agreement  itself,  and  nothing 
further  is  necessary.  ^'^^  In  Kentucky,  also,  it  is  provided  by  statute 
that  all  debts  founded  on  any  specialty,  bill  or  note  in  writing  ascer- 
taining the  demand,  shall  carry  interest  in  the  same  manner  as  in- 
terest due  on  a  bond  or  bill  with  a  penalty,  and  this  has  been  held  to 
include  rent  reserved  by  a  written  instrument.^'^^ 

Though  rents  and  profits  recoverable  from  a  mortgagee  on  redemp- 
tion do  not  usually  bear  interest  until  the  filing  of  a  bill  to  redeem 
or  an  account  be  demanded,  yet  where  the  possession  of  the  mortgagee 
was  mala  fide  from  the  beginning,  the  profits  became  a  debt  from  the 
time  of  their  accrual,  and  therefore  bear  interest.^'^ 

III.    Apportionment. 

§  667.  By  the  general  rule  of  the  common  law,  rent  may  be  ap- 
portioned as  to  estate  but  not  as  to  time.^^^  Wliile  there  may  be  an 
apportionment  of  rent  as  to  estate,^^*  there  can  be  none  as  to  time,^^^ 
for  the  contract  is  entire — ^the  rent  for  the  period  of  time  agreed 
upon  is  regarded  as  an  indivisible  item.  The  rule  that  rent  cannot 
be  apportioned  as  to  time  applies  only  in  the  absence  of  a  statute  or 
an  express  agreement  to  the  contrary  ;^^^  and  a  stipulation  that  in 
case  of  destruction  by  fire  accrued  rent  only  should  be  paid,  is  equiv- 

i«' Cooke  v.  Wise,  3  H.  &  M.  (Va.)  261;  Nicholson  v.  Munigle,  6  Allen 

463,  483.  (Mass.)   215;  Russell  v.  Fabyan,  28 

""West    Chicago     &c.    Works    v.  N.  H.  543;   Perry  v.  Aldrich,  13  N. 

Sheer,   8   111.   App.   367.     See  Malt-  H.  343;  Zule  v.  Zule,  24  Wend.   (N. 

man    v.    Williamson,    69    111.    423;  Y.)  76;  Page  v.  Culver,  55  Mo.  App. 

Ditch  v.  Vollhardt,  82  111.  134.  606;  Countess  of  Plymouth  v.  Throg- 

"^  Downing  v.  Palmateer,  1  T.  B.  morton,  1  Salk.  65. 

Mon.   (Ky.)   64.  "^Salmon  v.  Matthews,  8  M.  &  W. 

"^Benzein  v.  Robinett,  2  Dev.  Eq.  825;  Boston  &c.  R.  Co.  v.  Ripley,  13 

(N.  Car.)  67.  Allen  (Mass.)  421. 

'"Anderson    v.    Robbins,    82    Me.  ™  Smith,  Ex  parte,  1   Swanst.   4, 

422,  19  Atl.  910;  Cameron  v.  Little,  n.  A;    2  Greenl.   Cruise,  tit.  xxviii, 

62    Me.    550;    Cheairs    v.    Coats,    77  ch.  111. 

Miss.    846,    28    So.    728;    Dexter    v.  ""Mayor  &c.  v.  Ketcham,  67  How. 

Phillips,  121  Mass.  178,  23  Am.  R.  Pr.  (N.  Y.)  161. 


i 


§    667]  RENT  AXD  ITS  RECOVERY.  TT4 

alent  to  an  agreement  for  apportionment,  which  overrides  the  com- 
mon-law rule.^"^ 

Wliere  a  term  expires  before  the  day  on  which  rent  is  payable, 
whether  by  the  eviction  of  the  tenant  from  the  land  or  because  the 
lease  determines  before  the  legal  time  of  payment,  no  rent  shall  be 
paid,  for  there  shall  never  be  an  apportionment  in  respect  of  part  of 
the  time.^^®   This  rule  has  been  constantly  and  repeatedly  recognized, 
and  is  the  settled  rule  of  law.^'^    The  landlord  cannot  maintain  as- 
sumpsit for  use  and  occupation  for  such  time  as  the  tenant  is  actually 
in  occupation,  because  where  the  parties  have  come  to  an  express  con- 
tract, none  can  be  implied,  this  principle  being  so  firmly  established 
as  to  be  called  an  axiom  of  the  law.^'"    The  only  possession  of  the 
lessee  has  been  under  the  lease,  and  according  to  the  terms  of  the 
lease  no  rent  has  ever  become  due  which  remains  unpaid.    As  the  lease 
terminates  by  its  own  provisions  upon  the  happening  of  an  event 
which  the  parties  have  foreseen,  and  which  they  have  stipulated  should 
have  that  effect,  such  termination  cannot  be  treated  as  a  mutual  re- 
scission of  the  express  contract,  by  which  an  implied  contract  should 
be  substituted.  1^1    To  reach  this  result  it  is  not  necessary  to  deny 
that,  under  the  modern  notions  of  the  rescission  of  contracts,  and 
implied  assumpsit  for  use  and  occupation,  work,  labor  and  materials, 
actions  may  now  be  brought  in  many  cases  after  part  performance     ■{ 
of  the  contract.    But  an  implied  assumpsit  is  general,  and  supposes 
the  special  contract  out  of  the  way,  under  circumstances  which  raise 
an  equitable  demand  for  rent.^*- 

A  mortgagor  cannot  maintain  a  quantum  meruit  for  use  and  occu- 
pation enjoyed  by  his  lessee  under  a  parol  demise  prior  to  the  mort- 
gagee's entry ;  for  the  tenancy  between  the  mortgagor  and  his  lessee, 
being  junior  to  the  mortgage,  is  completely  determined  by  the  mort- 
gagee's entry  and  the  lessee's  attornment  to  him,  which  is  equivalent  to 
eviction  by  paramount  title.^^^ 

i^Hecht  v.   Heerwagen,   14   Misc.  Mass.    488;     Burden    v.    Thayer.    3 

(N.  Y.)  529,  2  N.  Y.  Ann.  Cas.  339.  Mete.   (Mass.)  76;  Nicholson  v.  Mu- 

"« Robinson    v.    Deering,    56    Me.  nigle,  6  Allen  (Mass.)  215. 

357;    Anderson  v.   Robbins,   82   Me.  i«»  Cutter  v.  Powell.  6  Term  R.  320, 

422.  19  Atl.  910;  Cameron  v.  Little,  324;  Hall  v.  Burgess,  5  B.  &  C.  332; 

62  Me.  550;   Zule  v.  Zule,  24  Wend.  Grimman  v.  Legge,  8  B.  &  C.  324 

(N.  Y.)    76;    Nicholson  v.  Munigle,  ^'^  Nicholson   v.   Munigle,   6   Allen 

6    Allen     (Mass.)     215;     Fuller    v.  (Mass.)   215;  Fuller  v.  Swett,  6  Al- 

Swett,  6  Allen   (Mass.)   219;   Clun's  len   (Mass.)  219. 

Case.  10  Co.  127.  ^'=  Zule  v.  Zule,  24  Wend.   (N.  Y.) 

"'Jenner    v.    Morgan.    1    P.    Wil-  76. 

liams  392;  Hay  v.  Palmer.  2  P.  Wil-  ^^^  Anderson    v.    Robbins,    82    Me. 

liams   501;    Wood   v.   Partridge,   11  422,  19  Atl.  910, 


775  APPORTIOXMEXT.  [§•  668 

Furthermore,  where  a  tenancy  at  will  is  terminated  between  two 
rent  days  by  a  conveyance  of  the  premises  by  the  landlord  to  a  third 
person,  the  tenant  is  not  liable  to  his  landlord  for  use  and  occupation 
of  the  premises  from  the  first  rent  day  to  the  date  of  the  conveyance, 
and  the  reason  is  that  rent  cannot  be  apportioned  as  to  time.^^-*  If  the 
landlord  is  entitled  to  an  apportionment  of  the  rent,  he  may  main- 
tain an  action  of  use  and  occupation ;  but  if  he  is  not  entitled  to  ap- 
portionment, he  has  no  remedy  at  all.^^^ 

Apportionment  of  rent,  in  cases  where  it  is  permitted,  is  for  the 
benefit  of  the  owners  of  the  rent,  and  the  omission  to  apportion  is 
not  a  matter  of  which  the  tenant  can  complain,  unless  something 
has  transpired  to  relieve  him  from  liability  to  pay  the  whole  rent.^^*' 

§  668.  When  part  of  a  reversion  is  sold,  the  law  will  apportion 
the  rent,  under  the  rule  that  rent  may  be  apportioned  as  to  estate,  and 
the  right  of  apportionment  attaches  the  moment  the  sale  is  made."^ 
On  the  death  of  a  lessor,  rent  has  to  be  apportioned  among  the  heirs 
on  whom  the  estate  is  cast,  and  in  such  case  it  is  the  duty  of  the 
tenant  to  pay  each  party  the  proportion  of  rent  to  which  he  is  en- 
titled,^ ^^  or  the  lessor  may  create  the  necessity  for  apportionment  by 
grant,  as  where  he  grants  a  part  to  one  or  the  whole  to  several  differ- 
ent persons.  ^^^ 

However,  the  law  will  not  apportion  rent  in  favor  of  a  wrong-doer ; 
but  the  owner  of  a  reversion  has  the  right  to  sell  the  whole  or  any 
part  of  it.  The  exercise  of  this  right  is  not  wrongful,  and  therefore, 
in  the  case  of  a  sale  of  a  part  of  the  reversion,  the  law  will  apportion 
the  rent.^^" 

On  the  transfer  of  an  undivided  interest,  rent  should  be  appor- 
tioned, as  where  leased  premises  are  owned  by  tenants  in  common  and 
one  of  the  joint  lessors  conveys  his  interest  in  the  reversion  to  the 

>8^  Emmes  V.  Feeley,  132  Mass.  346.  Cooke,  56  Md.  51;   Biddle  v.  Huss- 

*'=  Baker  v.  Jeffers,  4  Cranch  C.  C.  man,   23   Mo.   597,   602;    Cheairs   v. 

707,  2  Fed.  Cas.  No.  772.  Coats,    77    Miss.    846,    28    So.    728; 

'^People  V.  Dudley,  58  N.  Y.  323.  Nellis  v.  Lathrop,  22  Wend.  (N.  Y.) 

^"Linton  v.  Hart,  25  Pa.  St.  193,  121,    34    Am.    Dec.    285;    Shultz    v. 

64  Am.  Dec.  691;  Reed  v.  Ward,  22  Spreain,  1  Civ.  Cas.  Ct.  App.  (Tex.), 

Pa.  St.  144;   Crosby  v.  Loop,  13  III.  §  916. 

625;    Leitch   v.    Boyington,    84    111.  ''^  Crosby  v.  Loop,  13  111.  625. 

179;  Newall  v.  Wright,  3  Mass.  138,  ^'=' Crosby  v.  Loop,  13  111.  625. 

3   Am.   Dec.  98;    Keay  v.   Goodwin,  ""Cheairs  v.  Coats,  77  Miss.   846, 

16    Mass.   1;    Montague   v.    Gay,    17  28  So.  728;   Linton  v.  Hart,  25  Pa. 

Mass.  439;   Dreyfus  v.  Hirt,  82  Cal.  St.  193,  196. 

621,    23    Pac.    193;    Worthington   v. 


1 


§    669]  REXT  AND  ITS  RECOVERY.  776 

lessee.^^^  The  result  would  be  the  same  where  two  owners  of  separate 
but  adjoining  tracts  executed  a  lease  covering  both  parcels,  and  one 
subsequently  conveyed  his  reversionary  interest  to  the  lessee.  ^®^  In 
both  these  cases  the  covenant  to  pay  rent  would  be  extinguished  to  the 
extent  that  the  obligor  and  obligee  were  the  same  person. 

Where  rent  is  apportioned  by  a  transfer  of  part  of  a  reversion,  the 
transferee  may  sue  in  covenant  for  the  whole  rent,  although  his  re- 
covery will  be  limited  to  the  portion  to  which  he  is  entitled,^^^  the 
general  principle  being  that,  after  an  apportionment,  the  tenant  is 
liable  to  separate  actions  and  distresses."*  This  doctrine  of  appor- 
tionment has  even  been  applied  where  the  lease  covered  both  real  and 
personal  property,  and  the  real  property  had  been  sold  on  an  execu- 
tion against  the  lessor.  ^^^ 

If  made  without  the  concurrence  of  the  tenant,  the  apportionment 
of  rent  between  different  holders  of  parts  of  a  reversion  should  be 
made  by  a  jury,  and  it  has  been  declared  that  this  was  the  only  mode 
for  apportionment  in  such  case.^^^  But  where  all  the  parties  entitled 
to  the  rent  join  in  making  a  demand,  it  seems  that  the  tenants  must 
pay  or  refuse  to  do  so  at  their  peril,  they  not  being  entitled  to  resist 
payment  till  the  apportionment  has  been  made  by  a  jury.  Such  a 
doctrine  was  applied  by  the  New  York  court  to  a  testamentary  division 
of  rents  between  heirs  and  executors.^®^ 

§  669.  Where  a  lessee  assigns  part  of  his  interest,  the  rent  may  be 
apportioned  between  the  parties  holding  the  premises,  and  the  lessor 
may  sue  the  assignee  in  covenant  for  his  proportion.  This  necessarily 
follows  from  a  general  provision  that  the  assignee  shall  be  liable  in 

"*Hill  v.  Reno,  112  111.  154.  is  said:    "Nor  can  it  be  maintained 

»'  Higgins   V.   California   &c.    Co.,  that  S.  by  the  terms  of  his  will  ap- 

109  Cal.  304,  41  Pac.  1087.  portioned    the    rent,    in    the    sense 

193  Worthington  v.   Cooke,   56   Md.  claimed  by    .    .    .    counsel,  between 

51;   Dreyfus  v.  Hirt,  82  Cal.  621,  23  his  son  and  his  executor,  by  devising 

Pac.  193;  Walter  v.  Maunde,  1  J.  &  to  the  former  the  lots  Nos.  158,  160 

W.  181.  Third   avenue,   and   bequeathing  to 

"*  De  Coursey  v.  Guarantee  Trust  the  latter  the  leasehold  interest  in 

&c.  Co.,  81  Pa.  St.  217.  the  lots  Nos.  152,  154  Third  avenue. 

"°  Buffum     V.     Deane,     4     Gray  The  rent  remained  an  entirety  and 

(Mass.)   385.  unapportioned  so  far  as  the  tenants 

"*=  Nellis  V.  Lathrop,  22  Wend.  (N.  were   concerned.     The   fact  that   it 

Y.)  121;  Oakley  v.  Schoonmaker,  15  was   to    be    divided    or   distributed. 

Wend.  (N.  Y.)  226;  Bliss  v.  Collins,  after  payment,  between  the  heir  at 

5  B.  &  Aid.  876,  4  Mad.  235.  law  and  the  executor  was  a  matter 
"'  People  V.  Stuyvesant,  3  Thomp.  which  in  no  way  affected"  the  ten- 

6  C.   (N.  Y.)   179,  in  which  case  it     ants. 


777  APPORTIONMENT.  [§    6GQ 

debt  for  the  rent;  for,  if  the  rent  could  not  be  apportioned,  the  right 
of  the  lessor  to  the  rent  could  be  defeated  by  conveying  the  estate  to 
two  or  more  persons.^''®  It  is  settled  that  a  landlord  may  declare 
against  an  assignee  of  his  lessee  for  a  share  of  the  rent  reserved  in  the 
lease  proportioned  to  the  relative  value  of  the  part  held  by  assign- 
ment.^^^  Where  a  lessee  surrenders  part  of  the  leased  premises  to  the 
lessor,  the  rent  may,  upon  the  same  principle,  be  apportioned.^""  Lord 
Coke  lays  it  down  that  such  rent  services  as  were  not  within  the 
statute  Quia  emptores  were  apportionable  at  common  law;  "as,  if  a 
man  maketh  a  lease  for  life  or  years,  reserving  a  rent,  and  the  lessee 
surrender  a  part  to  the  lessor,  the  rent  shall  be  apportioned."^"^ 

Furthermore,  wdiere  there  is  an  eviction  by  paramount  title  from  a 
part  of  the  demised  premises,  it  has  been  held  that  the  rent  should  be 
apportioned.^"^  Thus,  in  a  case  where  a  part  of  land  covered  by  a 
lease  was  recovered  in  ejectment  against  the  lessor,  and  the  lessee  took 
a  lease  from  the  plaintiff  in  the  ejectment  suit,  and  continued  to 
occupy  the  whole  tract,  it  was  held  that  the  lessee  was  entitled  to  an 
apportionment  of  the  rent  reserved  in  the  first  lease.^"^  The  same 
principle  would  seem  to  apply  where  the  tenant  never  obtained  pos- 
session of  the  entire  premises.  But  the  failure  of  a  landlord  to  give 
possession  of  the  whole  premises  leased,  as  he  had  agreed  to  do,  de- 
prives him  of  the  right  which  the  law  conceded  to  him  of  distraining 
for  the  rent  of  that  portion  of  the  premises  actually  occupied,  and 
the  only  remedy  the  landlord  has  is  by  an  'action  for  use  and  occupa- 
tion for  such  portion.  The  landlord  himself  has  put  it  out  of  the 
tenant's  power  to  tender  the  amount  due.^"* 

The  apportionment  of  rent  reserved  in  a  lease  or  grant  among  sev- 

"' Daniels  v.  Richardson,  22  Pic.  =»=Fillebrown  v.  Hoar,  124  Mass. 
(Mass.)  565;  Montague  v.  Gay,  17  580;  Fitchburg  &c.  Mfg.  Co.  v.  Mel- 
Mass.  439;  Demainville  v.  Mann,  32  ven,  15  Mass.  268;  Halligan  v.  Wade, 
N.  Y.  197,  88  Am.  Dec.  324;  Van  21  111.  470,  74  Am.  Dec.  108;  Hege- 
Rensselaer  v.  Bradley,  3  Denio  (N.  man  v.  McArthur,  1  E.  D.  Smith 
Y.)  135,  45  Am.  Dec.  451;  Aster  v.  (N.  Y.)  147;  Carter  v.  Burr,  39 
Miller,  2  Paige  (N.  Y.)  68,  78;  Barb.  (N.  Y.)  59;  Collins  v.  Kara- 
Van  Rensselaer  v.  Jones,  2  Barb,  topsky,  36  Ark.  316;  Tunis  v. 
(N.  Y.)  643;  Main  v.  Davis,  32  Barb.  Grandy,  22  Gratt.  (Va.)  109;  Mc- 
(N.  Y.)  461;  Stevenson  v.  Lombard,  Fadin  v.  Rippey,  8  Mo.  738. 
2  East  575.  -<«  Poston  v.  Jones,  2  Ired.  Eq.  (N. 

"'Pingrey  v.  Watkins,  15  Vt.  479;  Car.)   350,  38  Am.  Dec.  683. 

Van  Rensselaer  v.  Bradley,  3  Denio  -"^  Hatfield    v.    Fullerton,    24    111. 

(N.  Y.)  135,  45  Am.  Dec.  451.  278;  Lawrence  v.  French,  25  Wend. 

'""Ehrman  v.  Mayer,  57  Md.  612.  (N.  Y.)  443. 

^'^Coke  Litt.  148a. 


1 


§■   670]  REXT  AXD  ITS  RECOVERY.  778 

eral  assignees  of  the  lessee  must  be  according  to  the  value  of  the 
several  parts  held  by  each,  and  not  according  to  the  quantity  or  num- 
ber of  acres.^"^  But  if  there  is  no  proof  of  the  relative  value,  the 
premises  will  be  presumed  to  be  of  equal  value,  and  the  rent  will  be 
apportioned  according  to  the  cjuantity  of  land  held  by  each.^*^^  The 
liability  of  the  assignee  of  the  lease  is  measured  by  the  extent  of  his 
possessory  right,  and  not  by  the  extent  of  his  possession.  Thus,  if  he 
was  assigned  by  one  of  two  lessees  an  undivided  half  interest,  he  is 
only  liable  for  half  the  rent  reserved  in  the  lease,  although  he  has  had 
exclusive  occupation  of  the  whole  premises.^**^  In  New  York,  how- 
ever, a  contrary  rule  seems  to  prevail,  and  consequently  an  assignee  of 
an  undivided  two-thirds  interest  of  a  term,  created  by  lease  reserving 
rent,  in  possession  of  the  entire  premises,  is  liable  to  the  owners  of 
the  reversion  in  fee  for  the  entire  rent.'°^  Where  assignments  of  un- 
divided interests  are  made  by  separate  instruments,  the  assignees  are 
not  jointly  liable  for  the  whole  rent,  but  each  is  severally  liable  for  a 
part  only,  according  to  his  interest  in  the  premises.^°^ 

Where  a  lease  covers  both  land  and  chattels,  and  the  chattels  are 
destroyed,  the  right  of  the  lessee  to  apportionment  depends  on  whether 
the  lessor  is  responsible  for  the  loss  in  any  way.  Where  the  lands  are 
recovered  against  the  lessor,  the  lessee  shall  hold  the  goods  to  the  end 
of  the  term,  and  the  rent  shall  be  apportioned  ;  likewise,  where  a  negro 
slave  included  in  the  lease  of  a  mill  as  miller  had  been  previously 
emancipated  by  the  lessor,  rent  should  be  apportioned,  and  the  lessee 
could  show  these  facts  under  a  plea  of  7iil  dehet.^^^  But  where  sheep 
included  in  a  lease  of  a  farm  die  without  fault  on  the  part  of  either 
the  lessor  or  lessee,  it  would  seem,  both  on  principle  and  the  weight  of 
authority,  that  rent  in  such  a  case  should  not  be  apportioned  in  the 
face  of  an  express  covenant  to  pay.  The  reason  for  this  is  that  there 
has  been  no  eviction  by  an  elder  title."^ 

2»5Van  Rensselaer  v.  Gallup,  5  an  absolute  assignee,  it  is  a  depart- 
Denio  (N.  Y.)  454;  Newton  v.  Wil-  ure  from  the  common  law.  Bab- 
son,  3  H.  &  M.   (Va.)  470.  cock  v.  Scoville,  56  111.  461. 

^Van     Rensselaer     v.     Jones,     2  =*"  Babcock  v.  Scoville,  56  111.  461. 

Barb.  (N.  Y.)   643.  ^"Newton  v.   Wilson,   3    H.   &   M. 

=°^St.  Louis  Pub.  Schools  v.  Boat-  (Va.)    470,  479;    Year  Book   12,   H. 

men's  Ins.  &c.  Co.,  5  Mo.  App.  91;  VIII,   ch.   11,   pi.   5;    Brooke's  Abr., 

Babcock  v.  Scoville,  56  111.  461.  tit.  Apportionment,  pi.   24.     Contra 

2°^  Damainville  v.  Mann,  32  N.  Y.  Gilbert  Rents,  p.  176. 

197,  88  Am.  Dec.  324.     Of  this  case  ^^  Scott  v.   Scott,   18   Grat.    (Va.) 

it  has  been  said  that,  in  so  far  as  150-176.    See   also,   Newton  v.   Wil- 

it  holds  that  an  entry  into  posses-  son.  3  H.  &  M.   (Va.)  470,  479;  Tav- 

sion  is  necessary  to  create  a  liabil-  erner's  Case,  1  Dyer  56a. 
ity   to    pay    rent    on    the    part    of 


779  APPOETIONMENT.  [§    G70 

If  a  person  other  than  the  lessee  is  in  possession,  not  in  his  own 
right  as  a  sub-lessee  or  assignee,  but  simply  as  an  agent  to  manage  the 
property,  he  will  not  be  charged  with  his  proportionate  part  of  the 
rent,  even  though  apportionment  was  provided  for  by  statute.^^^ 

§  670.  The  rent,  which  follows  the  reversion  as  an  Incident,  is  the 
rent  which  falls  due  subsequent  to  the  transfer.  If  the  lessor  dies 
before  rent  is  payable,  it  descends  to  his  heirs,  who  are  the  reversion- 
ers ;  but  if  he  dies  after  it  is  due,  it  goes  to  his  personal  representative, 
as  part  of  his  personal  estate.  It  seems  to  have  been  long  and  well 
settled  that  a  general  grant  of  the  reversion  does  not  pass  the  rent  past 
due.  Such  rent  is  a  debt,  due  to  the  lessor  and  a  part  of  his  per- 
sonalty. ^^^  Where  land  subject  to  a  lease  is  sold,  the  seller  is  entitled 
to  all  rents  past  due  at  the  time  of  sale ;  the  purchaser,  to  all  that  fall 
due  afterward.  This  is  the  rule  of  law  where  there  is  no  different 
understanding  entered  into  by  the  parties.^ ^* 

A  quitclaim  deed  from  a  lessor  to  his  lessee  of  the  leased  premises 
does  not  operate  to  release  and  discharge  claims  for  rent  already  ac- 
crued, simply  by  reason  of  the  legal  effect  of  the  conveyance  of  the 
property  out  of  which  the  rent  has  arisen.  The  prior  rental  of  the 
property  is  not  an  appurtenance  connected  with  it  or  belonging  to  it, 
but  an  entirely  independent  debt.  It  makes  no  difference  if  it  hap- 
pens that  the  grantee  in  the  deed  had  himself  been  the  tenant  of  the 
property.  It  is  difficult  to  see  why  a  deed  should  be  effective  to  con- 
vey more,  if  one  person  is  named  in  it  as  grantee,  than  if  another  is 
so  named.^^^  The  converse  of  this  rule  is  equally  applicable,  and 
therefore,  in  the  absence  of  special  agreement,  an  assignee  of  a  lease- 
hold in  possession  of  the  premises  upon  a  rent  day,  is  under  obliga- 
tion to  pay  the  entire  instalment  of  rent  which  falls  due  then.^^*^  In 
accordance  with  the  rule  that  rent  cannot  be  apportioned  as  to  time, 
the  owner  of  the  reversion  at  the  time  rent  becomes  due  is  entitled  to 
the  entire  sum  then  accruing,  although  his  ownership  has  not  extended 
over  the  whole  period  for  which  the  rent  is  paid.^^^    Where  a  lease  is 

^-  Stewart  v.  Perkins,  3  Ore.  508.  »°  Johnson  v.  Muzzy,  42  Vt.  708. 

-'^Perkerson  v.  Snodgrass,  85  Ala.  "^  Martineau    v.    Steele,    14    Wis. 

137,   4   So.   752;    Burden  v.   Thayer,  272. 

n  Mete.   (Mass.)   76;  Bank  of  Penn-  ="' English   v.    Key,    39    Ala.    113; 

sylvania    v.    Wise,    3    Watts    (Pa.)  Perkerson    v.     Snodgrass,    85    Ala. 

394;    Van    Wicklen    v.    Paulson,    14  137,  4  So.  752;   Martin  v.  Martin,  7 

Barb.    (N.  Y.)    654;    King  v.  Ander-  Md.  368,  61  Am.  Dec.  364;   Dixon  v. 

son,  20  Ind.  385.  Niccolls,     39     111.     372;     Hearne    v. 

="Page   V.   Lashley,   15   Ind.   152;  Lewis,  78  Tex.  276,  14  S.  W.  572. 
Johnson  v.  Muzzy,  42  Vt.  708. 


§    6 TO]  EEXT  AXD  ITS  RECOVERY.  780 

granted  by  a  life  tenant^  who  dies  during  the  term,  the  rents  which 
accrued  previous  to  the  death  of  the  lessor  are  collectible  by  his  per- 
sonal representative,  but  those  that  accrued  afterward  under  an  im-  m 
plied  agreement  for  continued  occupation  between  the  lessee  and  re- 
mainderman  would  go  to  the  remainderman.^^®  Without  deciding 
whether  a  lessee  of  a  life  tenant  is  liable  to  the  estate  of  the  life  ten- 
ant for  rent  after  the  determination  of  the  life  estate,  if  he  recog- 
nized his  promise  to  pay  rent  as  binding  and  paid  the  full  rent  re- 
served to  the  administrator  of  the  life  estate,  it  is  clear  that  the  rever-  | 
sioner  has  no  claim  against  the  estate  of  the  life  tenant  for  this  rent  or 
for  any  part  of  it.  The  contract  between  the  life  tenant  and  his  lessee 
is  not  made  for  or  in  behalf  of  the  reversioner,  nor  is  he  a  party  to  the 
contract.  The  lessee  did  not  pay  the  money  to  the  administrator  of 
the  life  tenant  for  the  use  of  the  reversioner.  If  the  lessee  has  any 
claim  against  the  estate  of  the  life  tenant  by  reason  of  having  paid 
rent  for  a  full  term  which  failed,  the  reversioner  has  not  succeeded  by 
assignment,  or  otherwise,  to  that  claim,  nor  is  he  entitled  to  be  subro- 
gated to  the  rights  of  the  lessee  against  the  estate  of  the  life  tenant.  ^^^ 
In  California  protection  against  double  liability  has  been  given  by 
statute,  and  in  that  state  a  tenant,  against  whom  conflicting  claims  for 
rent  have  been  made,  may  file  a  bill  of  interpleader  against  the  sev- 
eral claimants  to  determine  their  respective  rights  to  the  rent.^^'^ 

Modern  rules  regarding  the  transfer  of  land  dispense  with  attorn- 
ment and  the  grant  is  at  once  effectual  and  complete.  But,  though 
the  grantee  of  a  reversion  is  entitled  to  rent  without  attornment,  the 
tenant  is  protected  in  the  payment  of  rent  to  the  original  landlord 
until  he  has  actual  notice  of  a  transfer.  Such  protection  has  been  held 
to  apply  to  a  payment  of  rent  made  in  advance  of  the  time  it  fell  due, 
although  the  reversion  had  been  granted  over  before  the  time  for  pay- 
ment under  the  terms  of  the  lease.^^^ 

A  law  providing  that  the  purchaser  is  entitled  to  receive  from  the 
tenant  in  possession  the  rents  of  the  property  sold,  has  no  application, 
the  South  Dakota  court  held,  to  sales  made  at  a  mortgage  foreclosure, 
either  by  advertisement  or  by  action.^-^     A  mortgagee,  having  pur- 

=«*  Lowrey    v.    Reef,    1    Ind.    App.  '^  Schluter  v.  Harvey,  65  Cal.  158, 

244,    27    N.    E.    626;     Hoagland    v.  3  Pac.  659. 

Crum,  113  111.  365;   Wright  v.  Rob-  ^-'i  Dreyfus  v.  Hlrt,  82  Cal.  621,  23 

erts,   22   Wis.   161,   165;    Guthmann  Pac.    193;    Stone    v.    Patterson,    19 

V.   Vallery,   51   Neb.   824,   71   N.  W.  Pick.  (Mass.)  476;  Farley  v.  Thomp- 

734.  son,  15  Mass.  18. 

^i' Guthmann   v.   Vallery,   51   Neb.  ====  Rudolph  v.  Herman,  4  S.  Dak. 

824,  71  N.  W.  734.  283,  56  N.  W.  901. 


781  APPORTIONMEXT.  [§    G81 

chased  the  premises  at  such  foreclosure  sale  and  having,  without  the 
consent  of  the  mortgagor,  collected  rents  from  tenants  thereon,  is  lia- 
ble to  the  mortgagor  for  the  amount  collected.  ^^^ 

§  671.  In  most  states  of  the  United  States  there  are  statutes  pro- 
viding for  apportionment  in  case  the  estate  of  the  lessor  is  determin- 
able on  a  life  or  on  any  contingency  and  is  so  determined.  In  the  con- 
struction of  such  a  statute  by  the  Massachusetts  court,  it  was  contended 
that  the  words  "or  any  contingency"  were  broad  enough  to  cover  a  case 
where  a  mortgagee,  whose  mortgage  was  senior  to  a  lease,  entered  for 
condition  broken  during  the  quarterly  rent  period.  But  the  court  held 
that  these  words,  taken  in  the  connection  in  which  they  are  used, 
clearly  referred  to  the  happening  of  some  event  affecting  the  nature 
and  character  of  the  estate  itself,  and  an  essential  and  necessary  part 
of  it,  upon  which  the  continuance  of  the  estate  depends.  The  estate 
of  a  mortgagor,  or  of  an  owner  of  an  equity  of  redemption,  is  not  de- 
termined by  the  happening  of  any  such  event  or  contingency;  it  can 
only  be  determined  by  his  own  neglect  to  perform  his  contract,  or  to 
pay  the  debt  which  the  mortgage  is  given  to  secure.  In  fact,  the 
mortgagor's  estate  is  not  absolutely  determined  by  the  entry  of  the 
mortgagee;  he  still  has  a  right  to  redeem,  and  if  he  redeems,  he 
could  collect  the  entire  rent.^^*  Under  a  similar  statute  in  North 
Carolina  it  was  held  that  a  foreclosure  was  not  such  an  uncertain 
event  as  to  entitle  the  mortgagor  lessor  to  an  apportionment  of  a 
crop  which  is  planted  after  the  sale,  and  on  which  he  has  made  ad- 
vances with  knowledge  of  the  foreclosure  deeree.^^^  In  Kentucky  a 
statute  of  this  nature  was  held  to  apply  to  a  letting  on  the  shares,  the 
executor  of  the  life  tenant  being  entitled  to  recompense  for  seed 
grain  supplied  before  the  crop  rent  was  apportioned  between  him 
and  the  remainderman.^-*^  Under  the  New  York  law  making  the  right 
to  rent  follow  the  o^vnership  of  the  estate,  the  common  law  rule  is 
changed,  and  the  vendor  and  purchaser  are  each  entitled  to  the  rent 
earned  during  their  respective  ownerships.-^^  So  if  a  lessee,  after  re- 
ceiving an  assignment  of  the  lease,  pays  rent  for  a  full  month  under 
protest,  he  is  entitled  to  restitution  of  such  portion  as  was  earned 
after  the  transfer.^-* 

^''Siems  v.  Pierre  Sav.  Bank,  7  S.  -"Redmon  v.  Bedford,  80  Ky.  13, 

D.  338,  64  N.  W.  167.  3  Ky.  L.  R.  511. 

'=*  Adams    v.    Bigelow,    128    Mass.  ==^  Eddy,  In  re,  10  Abb.  N.  C.   (N. 

365;   Knowles  v.  Maynard,  13  Mete.  Y.)   396. 

(Mass.)  352.  -^  Eddy,  In  re,  10  Abb.  N.  C.   (N. 

''^  Spruill  V.  Arrington,  109  N.  Car.  Y.)  396. 
192,  13  S.  E.  779. 


§    673]  RENT  AXD  ITS  RECOVERY.  783 

IV.    Set-off  and  Recoupment. 

§  672.  The  cost  of  repairs  made  by  a  tenant  with  the  consent  of 
the  landlord  and  for  which  the  landlord  agreed  to  pay  may  be  set  off 

against  the  rent  account  by  the  tenant,--"  but  in  the  absence  of  agree- 
ment the  tenant  has  no  right  to  deduct  the  cost  of  repairs  from  the 
rent,  since  the  landlord  is  under  no  obligation  to  make  the  repairs. ^^^ 
The  same  is  obviously  true  where  the  lease  places  the  burden  of  mak- 
ing repairs  on  the  lessee. -^^  But  when  the  lessor  has  bound  himself 
to  make  repairs  by  an  express  contract  to  that  effect,  the  lessee  may 
make  the  needed  repairs  himself  and  charge  the  expenditure  to  the 
landlord;  or  when  sued  for  rent  he  may  recoup  for  damages  caused 
by  the  lack  of  repair  in  diminution  of  rent  f^~  but  the  tenant  is  under 
no  obligation  to  make  the  repairs  and  his  recovery  is  not  limited  to 
the  amount  of  the  expenses  which  he  would  thereby  incur.-^^  In  that 
case  the  amount  of  recovery  would  be  the  sum  by  which  the  rental 
value  of  the  premises  have  been  lessened  ;^^'*  the  tenant  is  entitled 
to  recover  for  all  damage  which  is  the  natural  and  proximate  result 
of  the  breach,-^^  being  such  damages  as  are  traceable  solely  to  a 
breach  of  the  contract.-^®  Thus,  in  an  action  for  rent  under  a  lease 
of  a  farm,  defendant  set  up  a  counter-claim  for  damages  for  plain- 
tiff's failure  to  perform  an  agreement  to  construct  ditches.  The 
proper  amount  of  recovery  for  such  breach  would  be  the  defendant's 
loss  by  having  to  work  an  undrained  instead  of  a  drained  farm;  the 
measure  of  damages  would  not  be  limited  to  the  cost  of  putting  in  a 
drain.-^'^ 

The  California  statute,  requiring  a  landlord  to  keep  premises  in  a 
habitable  condition,  and  allowing  a  tenant  to  expend  one  month's 
rent  in  making  repairs  which  the  landlord  has  neglected  to  make, 
is  not  equivalent  to  a  covenant  to  repair  by  the  landlord,  and  does 
not  give  the  tenant  the  right  to  recoup  that  amount  in  damages  after 
he  has  remained  in  possession  and  failed  to  make  the  repairs.^^® 

'^^  Trathen  v.  Kipp,  15  Colo.  App.  =^*  Taylor  v.  Lehman,  17  Ind.  App. 

426,  62  Pac.  962.  585,  46  N.  E.  84,  47  N.  E.  230. 

^^o  Bonaparte    v.    Thayer,    95    Md.  ='=  Culver  v.  Hill,  68  Ala.  66. 

548,  52  Atl.  496.  ='"  Stewart  v.  Lanier  House  Co.,  75 

"^Hovey  v.  Walker,  90  Mich.  527,  Ga.  582. 

51  N.  W.  678.  '''  Spencer    v.    Hamilton,    113    N. 

="  Ross  V.  Stockwell,  19  Ind.  App.  Car.  49,  18  S.  E.  167. 

86,  49  N.  E.  50;  Kimball  v.  Doggett,  =^*  Moroney   v.    Hellings,    110    Cal. 

62  111.  App.  528.  219,  42  Pac.  560. 

"^Vandegrift    v.    Abbott,    75    Ala. 
487;  Culver  v.  Hill,  68  Ala.  66. 


1 


"^SS  SET-OFF  AND  RECOUPMENT.  [§    673 

In  order  to  recoup  for  damages  because  a  leased  building  was  not 
completed  in  a  proper  and  suitable  manner  to  meet  the  purposes  for 
which  it  was  intended  to  be  used  and  occupied,  the  indenture  of  lease 
must  contain  some  specification  of  manner  of  completion,  so  that 
on  comparing  the  building  as  completed  with  the  terms  as  to  man- 
ner it  may  be  shown  that  it  did  not  fulfil  the  covenant  of  the  les- 


sor 


239 


§  673.  The  extent  of  the  right  of  a  tenant  entering  or  remaining 
in  possession  of  the  premises  after  the  failure  of  the  landlord  to  re- 
pair is  to  recoup  the  demand  for  rent  because  of  the  depreciation  of  the 
value  of  the  rent  by  reason  of  the  breach  of  agreement  to  repair.  The 
right  to  abandon  for  such  cause  must  be  availed  of  at  once,  and  if  the 
tenant  remains  in  possession  under  the  lease  for  any  length  of  time, 
he  cannot  abandon  the  possession  because  of  the  breach  of  covenant 
to  repair.^*"  As  long  as  the  lessee  remains  in  possession  the  failure 
to  put  in  improvements  as  agreed  would  not  relieve  the  lessee  from 
his  liability  to  pay  rent ;  at  most,  such  failure  gives  him  only  a  claim 
for  damages.2*i  However,  it  has  been  held  that  if  there  is  a  defect  in 
construction,  which  prevented  a  leased  house  from  being  used,  and 
this  defect  is  unknown  to  the  lessees,  they  may  show  in  answer  to  a 
claim  for  rent,  that  notwithstanding  they  took  possession  and  ex- 
pressed themselves  satisfied  with  the  condition  of  the  premises,  they 
were  not  in  fact  fit  for  occupation,  and  that  therefore  the  term  did 
not  commence  with  their  possession.  If  the  defect  were  an  obvious 
one,  taking  possession  would  be  a  waiver  of  objection  on  account 
of  it.2*2 

A  lessee  may,  by  suing  for  breach  of  a  covenant  to  complete  a 
building,  elect  to  treat  the  covenant  to  pay  rent  as  an  independent 
covenant.  It  then  becomes  unnecessary  to  decide  whether  the  cove- 
nant to  pay  the  rent  was  dependent  upon  the  covenant  to  complete  the 
building  at  the  time  agreed,  so  as  to  make  such  failure  a  defense  to  an 
action  for  rent.^**^  If  lessees  enter  and  occupy  premises  before  the 
completion  of  stipulated  repairs,  they  thereby  waive  their  right  to 
performance  as  a  condition  precedent  to  the  beginning  of  the  term.-** 

"'Rutland  &c.  Co.  v.  King,  51  Vt,  =" Clarke   v.   Spaulding,  20  N.   H. 

462.  313. 

^^''Kiernan   v.    Germain,   61    Miss.  ="  Knapp   v.   Anderson,    71    N.    Y. 

498;  §  324.     See  Kimball  v.  Doggett,  466. 

62  111.  App.  528.  ="  Bonaparte    v.    Thayer,    95    Md. 

^"'Long  V.   Gieriet,   57  Minn.   278,  548,  52  Atl.  496. 
59  N.  W.  194. 


§'   673]  RENT  AND  ITS  RECOVERY.  784 

But  payment  of  rent  under  threat  of  ejectment  is  not  a  waiver  of 
the  right  to  insist  on  having  the  repairs,  stipulated  for  in  a  parol 
lease,  made,  and  the  tenant  can  recoup  in  damages  for  the  failure  to 
repair  when  subsequently  sued  for  rent,^*^  the  cases  holding  that 
payment  of  rent  for  the  greater  part  of  the  term  will  not  deprive  him 
of  the  right  to  counter-claim  his  damages  for  the  entire  term.^*''  In 
an  early  Illinois  case,  however,  it  was  held  that  a  lessor  could  not 
recover  on  the  special  agreement  of  leasing  unless  he  had  performed 
his  part.^*'' 

But  according  to  the  general  rule  of  the  common  law,  a  covenant 
to  pay  rent  and  a  covenant  to  make  proper  repairs  are  independent 
of  each  other,  and  the  failure  of  the  lessor  to  keep  his  covenant  does 
not  relieve  the  lessee  from  his  obligation  to  pay  the  rent  while  he 
remains  in  possession.  It  is  familiar  law  that  the  breach  on  the  part 
of  the  landlord  by  failing  to  make  repairs  does  not  furnish  any  ground 
for  the  tenant  to  resist  the  payment  of  rent  while  he  occupies  the 
premises.-*^  But  the  liability  of  the  lessee  to  pay  the  rent  is  subject 
to  a  deduction  of  any  damage  he  sustained  from  the  failure  to  repair-*^ 
or  he  may  elect  to  bring  a  separate  action  for  the  recovery  of  dam- 
ages.^^^  The  mode  in  which  such  a  defense  is  availed  of  in  an  action 
for  rent  is  by  a  plea  of  recoupment,  which  is  more  restricted  than  a  set- 
off, in  that  it  must  arise  from  the  same  contract  upon  which  the 
original  claim  is  based,  but  more  elastic  in  that  the  damages  claimed 
need  not  be  liquidated.  The  most  familiar  case  in  which  recoupment 
is  allowed  in  suits  between  landlord  and  tenant  is  where  a  landlord, 
suing  for  rent,  has  failed  to  perform  his  covenant  to  repair,  and  the 
general  doctrine  in  such  case  is  that  the  tenant  may  recoup  for  dam- 
ages caused  by  breach  of  the  landlord's  covenant.^"   While  the  non-ob- 

"=  Breese  v.  McCann,  52  Vt.  498.  Horton  v.  Miller,  84  Ala.  537,  4  So. 

=*•=  McAlester    v.    Landers,    70    Cal.  370;  Murphy  v.  Farley,  124  Ala.  279, 

79,  11  Pac.  505;    Cook  v.  Soule,  56  27  So.  442;  McAlester  v.  Landers,  70 

N.  Y.  420.  Cal.  79,  11  Pac.  505;    Livingston  v. 

="  Baird  V.  Evans,  20  111.  29.  L'Engle,    27    Fla.    502,    8    So.    728; 

-*^  Young  V.  Burhans,  80  Wis.  438,  Stewart  v.  Lanier  House  Co.,  75  Ga. 

50   N.   W.   343;    Allen  v.   Culver,   3  582;    Reno    v.    Mendenhall,    58    111. 

Denio   (N.  Y.)   284;   Nichols  v.  Du-  App.    87;    Reeves   v.    Hyde,    14    111. 

senbury,  2  N.  Y.  283.  App.  233;  Kimball  v.  Doggett,  62  111. 

="  Young  v.  Burhans,  80  Wis.  438,  App.  528;  Clark  v.  Ford,  41  111.  App. 

50  N.  W.  343.  199;  Ross  v.  Stockwell,  19  Ind.  App. 

==»  McAlester   v.   Landers,   70    Cal.  86,  49  N.  E.  50;   Taylor  v.  Lehman, 

79,  11  Pac.  505;  Kelsey  v.  Ward,  38  17  Ind.  App.  585,  46  N.  E.  84,  47  N. 

N.  Y.  83.  E.  230;  Pioneer  Press  Co.  v.  Hutch- 

="  Culver  v.  Hill,  68  Ala.  66;  Rowe  inson,  63  Minn.  938,  65  N.  W.  938; 

V.   Baber,   93   Ala.   422,   8    So.   865;  Long  v.  Gieriet,  57  Minn.  278,  59  N. 


I 


785  SET-OFF  AND  RECOUPMENT.  [§    6T4 

servance  of  covenants  to  repair  may  not  be  the  subject  of  set-off  in  an 
action  for  rent,  yet  the  breach  of  these  covenants  constitutes  a  good 
defense  by  way  of  recoupment.  This  principle  is  understood  to  be 
that  in  actions  of  assumpsit  to  recover  damages  for  the  breach  of  an 
agreement,  the  defendant  may  set  up  by  way  of  recoupment,  under  a 
proper  notice,  that  the  plaintiff  has  violated  the  same  agreement,  and 
thus  defeat  a  recovery  for  more  than  the  balance.  The  rule  is  one  of 
obvious  equity,  and  is  susceptible  of  ready  and  convenient  application 
on  the  trial.  It  adjusts,  by  one  action,  mutual  and  adverse  claims 
growing  out  of  the  same  contract,  and  thus  prevents  the  needless 
multiplication  of  suits.-^^  Although  a  lessee  has  covenanted  abso- 
lutely to  pay  rent,  he  can  recoup  for  damages  caused  by  the  lessor's 
failure  to  perform  his  covenant  to  rebuild  after  a  destruction  by  fire."^^ 
The  important  limitation  on  the  doctrine  of  recoupment  is  that  the 
damages  must  arise  out  of  a  breach  of  the  same  contract.^^'*  An  at- 
tempt to  recoup  damages  for  breach  of  a  verbal  agreement  to  repair, 
the  lease  being  under  seal,  failed  and  the  reason  assigned  was  that  a 
lease  under  seal  could  not  be  varied  by  parol.^^^  On  the  other  hand, 
recoupment  has  been  allowed  for  breach  of  a  collateral  agreement  to 
repair,  entered  into  at  the  time  of  making  the  contract  of  renting. 
The  two  demands  spring  out  of  the  same  transaction,  and  there  is  a 
natural  equity  that  the  one  should  compensate  the  other,  and  that  only 
the  balance  should  be  recoverable.^^*' 

§  674.  Furthermore,  a  lessee  sued  for  rent  may  recoup  in  damages 
for  a  false  allegation  of  the  landlord.-"  A  lessee,  after  accepting  a 
lease  and  entering  into  possession  of  the  premises,  upon  discovering  a 
fraudulent  representation  by  the  lessor  of  a  material  fact,  is  not  com- 
pelled to  give  up  the  premises  and  rescind  the  lease,  but  he  may  bring 
an  action  against  the  lessor  for  deceit,  there  being  nothing  in  the  rela-' 

W.    194;    Kiernan    v.    Germain,    61  ^*  Livingston  v.  L'Engle,   27   Pla. 

Miss.  498;  Kelsey  v.  Ward,  38  N.  Y.  502,  8  So.  728. 

83;  Breese  v.  McCann,  52  Vt.  498.  ="  Reeves  v.  Hyde,  14  III.  App.  233. 

===  Nichols  V.   Dusenbury,  2  N.   Y.  =»"  Vandegrift    v.    Abbott,    75    Ala. 

283;   Wright  v.  Lattin,  38  III.  293;  487. 

Lunn  v.  Gage,  37  111.  19;   Whitbeck  ="  Dennison  v.  Grove,  52  N.  J.  L. 

V.    Skinner,    7    Hill     (N.    Y.)     53;  144,  19  Atl.  186;  May  wood  v.  Logan, 

Westlake  v.  DeGraw,  25  Wend.   (N.  78  Mich.  135,  43  N.  W.  1052;  Wilkin- 

Y.)    669,  672;   Batterman  v.  Pierce,  son  v.  Clausen,  29  Minn.  91,  12  N. 

3  Hill  (N.  Y.)  171;  Fowler  v.  Payne,  W.  147;  McCoull  v.  Herzberg,  33  111. 

49  Miss.  32,  73.  App.  542. 

253  Fowler  v.  Payne,  49  Miss.  32. 
Jones  L.  &  T.— 50 


§    675]  EEXT  AXD  ITS  RECOVERY.  78(> 

tion  of  landlord  and  tenant,  or  in  the  rules  of  law  which  control 
that  relation,  to  preclude  him  from  so  doing.  Aside  from  the  common 
law  rule,  which  bound  parties  who  solemnly  contracted  by  deed  to  the 
presumption  of  full  consideration,  there  would  seem  to  be  no  reason 
why  a  reduction  of  damages  for  partial  failure  of  consideration,  or 
recoupment  should  not  be  allowed.  And  where,  by  statute,  a  seal  is 
no  longer  of  its  former  conclusive  force,  a  suit  on  a  contract  for  rent, 
like  ordinary  parol  agreements,  should  be  subject  to  that  course  of 
defense,  as  it  avoids  circuity  of  action.^^^  Thus,  for  damages  caused 
by  the  landlord's  false  statement  in  regard  to  the  purity  of  water  in  a 
well,  the  tenant  could  recoup  in  damages  when  sued  for  rent.^^'* 

But  the  landlord  is  not  an  insurer  unless  an  express  clause  in  the 
lease  makes  him  so,  and  therefore  he  is  not  subject  to  recoupment  if 
he  acts  in  good  faith,^®''  or  where  the  injury  was  caused  by  an  un- 
usual  storm  which  flooded  the  premises  through  a  sewer  adequate  in 
ordinary  weather.^^^  Injury  to  premises  by  a  freshet  is  not  a  ground 
for  set-off  in  an  action  on  an  express  covenant.-''- 

V.     Abatement  of  Bent. 

§  675.  The  destruction  by  fire  of  buildings  upon  leased  premises 
does  not  relieve  the  lessee  from  his  obligation  upon  an  express  cove- 
nant to  pay  rent,  according  to  the  well-settled  rule  of  the  common 
law.^®^    "We  think  it  may  safely  be  said,"  remarked  the  New  York 

^"Deniiison  v.  Grove,  52  N.  J.  L.  head.   106   Ga.   434,  32   S.  E.   349; 

144,  19  Atl.  186;  Lord  v.  Brookfield,  Buerger  v.  Boyd,  25  Ark.  441;  Cow- 

37  N.  J.  L.  552.    Prior  to  the  statute  ell  v.   Lumley,   39   Cal.  151;    Smith 

New   Jersey   followed   the  common-  v.  McLean,  123  111.  210,  14  N,  E.  50; 

law  doctrine  in  regard  to  actions  on  Harris  v.  Heackman,  62  Iowa  411, 

sealed  instruments  and  did  not  al-  17  N.  W.  592;  Womack  v.  McQuarry, 

low  recoupment.     Hunter  v.  Reiley,  28  Ind.  103;  Vale  v.  Trader,  5  Kan. 

43  N.  J.  L.  480.  App.   307,   48  Pac.   458;    Redding  v. 

*»Maywood    v.    Logan,    78    Mich.  Hall,  1  Bibb  (Ky.)  536;  Helburn  v. 

135,  43  N.  W.  1052.  Mofford,  7  Bush  (Ky.)   169;   Lieber- 

'^''McCoull    V.    Herzberg,    33    111.  thai  v.  Montgomery,  121  Mich.  369, 

App.  542.  80   N.   W.   115;    Fowler   v.   Bott,    6 

"^Wilkinson  v.  Clauson,  29  Minn.  Mass.    63;    Lanpher    v.    Glenn,    37 

91,  12  W.  N.  147.  Minn.  433,  33  N.  W.  10;   Taylor  v. 

="Niedelet  v.  Wales,  16  Mo.  214.  Hart,  73  Miss.  22,  18  So.  546;  Fowler 

^"^  Chamberlain  v.  Godfrey,  50  Ala.  v.  Payne,  49  Miss.  32,  79;   Coles  v. 

530,  533;  Cook  v.  Anderson,  85  Ala.  Celluloid  Mfg.  Co.,  39  N.  J.  L.  326; 

99,  4  So.  713;  Warren  v.  Wagner,  75  Davis  v.   George,  67  N.   H.  393,  3^ 

Ala.  188;  Fleeming  v.  King,  100  Ga.  Atl.  979;   Hallett  v.  Wylie,  3  Johns. 

449,  28  S.  E.  239;   Mayer  v.  More-  (N.  Y.)  44;  Austin  v.  Field,  7  Abb. 


787  ABATEMENT   OF  RENT.  [§■   675 

court  in  1808,  ''that  there  is  not  a  case  in  the  books  where  the  destruc- 
tion of  the  demised  premises  by  fire  has  been  held  to  excuse  the  tenant 
from  the  payment  of  the  rent  on  an  express  covenant;  but  in  every 
case  where  a  defense  on  that  ground  has  been  attempted,  it  has 
failed/'264  ^^  common  law  a  tenant  is  bound  to  pay  rent  although 
the  premises  are  destroyed  by  inevitable  casualty  and  can  have  no 
abatement  for  such  destruction  without  an  express  provision  to  that 
effect.  The  reason  assigned  for  this  rule  are  twofold,  (1)  it  is  said 
to  rest  on  the  express  covenant  to  pay  rent;  (2)  it  is  because  the  ten- 
ant is  entitled  to  casual  profits  and  therefore  must  stand  casual  losses. 
But  of  these  two,  the  first  is  the  better  reason.-*"^ 

In  Paradyne  v.  Jayne-"^^  an  action  of  debt  was  brought  for  rent 
upon  a  lease  for  years,  and  the  defendant  pleaded  by  way  of  excuse 
for  the  non-payment  of  rent,  that  he  had  been  driven  from  the 
premises  by  the  public  enemies.  The  case  was  fully  and  ably  argued 
before  the  King's  Bench  during  the  time  of  the  civil  wars  and  the 
reign  of  Charles  I.  It  was  insisted  that  by  the  law  of  reason  a  man 
ought  not  to  pay  rent  when  he  could  not  enjoy,  without  any  default 
on  his  part,  the  land  demised  to  him,  and  that  the  civil  and  canon  law 
exempted  the  party  in  such  a  case.  But  Eolle — author  of  the  abridg- 
ment— overruled  the  plea  and  held  that  neither  the  hostile  army  nor 
an  inundation  would  exempt  the  tenant  from  paying  rent.  The  same 
doctrine  has  been  held  to  this  day  and  it  is  well  settled,  that  upon  an 
express  covenant  to  pay  rent,  the  loss  of  the  premises  by  fire  or  in- 
undation, or  external  violence,  will  not  exempt  the  party  from  his 
obligation  to  pay  rent.^*'^  For  where  the  law  creates  a  duty  or  charge, 
and  the  party  is  disabled  from  performing  it  without  fault  on  his  part, 

Pr.  N.  S.  (N.  Y.)  29;  Linn  v.  Ross,  Carter  v.  Cummings,  1  Cha.  Ca.  83; 

10  Ohio  412;  Harrington  v.  Watson,  §  404. 

11  Ore.  143,  3  Pac.  173;  Bussman  v.  =•=*  Hallett  v.  Wylie,  3  Johns.    (N. 
Ganster,    72    Pa.    St.    285;    Dyer   v.  Y.)  44. 

Wightman,  66  Pa.   St.  425;    Magaw  ="=  Redding  v.  Hall,  1  Bibb   (Ky.) 

v.  Lambert,  3  Pa.  St.  444;    Coogan  536;  Diamond  v.  Harris,  33  Tex.  634. 

V.   Parker,  2  S.  Car.  255;    Hicks  v.  Where  there  was  a  lease  of  an  iron 

Parham,     3     Hayw.     (Tenn.)     224;  bank    with    the    exclusive    right   to 

Banks   v.   White,   1   Sneed    (Tenn.)  mine  iron  ore  therefrom,  lessee  is 

614;    Diamond    v.    Harris,    33    Tex.  bound   on  an  absolute  covenant  to 

634;  Thompson  v.  Pendell,  12  Leigh  pay  rent  whether  there  is  any  ore 

(Va.)     591;    Richmond    Ice    Co.    v.  or  not.    Clark  v.  Midland  &c.  Co.,  21 

Crystal  Ice  Co.,  99  Va.  239,  37  S.  E.  Mo.  App.  58. 

851;  Porter  v.  Tull,  6  Wash.  408,  33  =«"  Alley n  Rep.  26. 

Pac.  965,  36  Am.  St.  172,  22  L.  R.  A.  ="  Robinson    v.    L'Engle,    13    Fla. 

613;    Doe  v.   Sandham,   1    Term   R.  482;  Coy  v.  Downie,  14  Fla.  544. 
705;    Paradine   v.    Jane,   Aleyn   27; 


§    675]  RENT  AND  ITS  RECOVERY.  788 

a  different  rule  prevails.  In  the  absence  of  an  express  covenant  to 
pay,  a  tenant  is  not  liable  for  rent,  after  the  destruction  of  the 
premises.  So  leased  property  having  been  destroyed  by  the  public 
enemy  in  time  of  war,  and  the  lessees  having  been  deprived  of  its  use 
and  enjoyment  without  their  fault,  they  ought  to  that  extent  to  be 
released  from  their  liability  to  pay  rent.^"^ 

It  does  not  matter  whether  the  lease  is  under  seal  or  not,  so  long 
as  the  promise  is  an  express  one  to  pay  rent,  and  the  expression  "for 
$300  per  year  payable  annually"  and  signed  by  the  lessee  is  an  ex- 
press promise  to  pay  rent.^*''^  Injustice  or  hardship  to  the  lessee  is 
not  a  ground  for  altering  the  rule,  and  the  tenant  has  been  held  for 
rent,  although  he  could  not  replace  a  frame  building,  which  was  de- 
stroyed, because  of  a  fire  ordinance  in  the  city  which  required  brick 
or  stone  buildings.^^" 

A  tenant  is  not  excused  from  his  express  covenant  to  pay  rent  by 
the  destruction  of  the  premises  by  tempest,  in  the  absence  of  an  ex- 
cepting clause.^'^^  Where  a  warehouse  became  untenantable  by  reason 
of  high  water,  but  the  lease  contained  no  stipulation  for  abatement 
of  rent  in  such  contingency,  the  entire  rent  could  be  recovered. -■^- 
The  failure  of  a  right  to  take  water  from  a  spring  included  in  a  lease 
did  not  release  a  lessee  from  his  unconditional  covenant  to  pay  a  cer-  _^ 
tain  sum  as  rent.~"^  '). 

For  a  landlord  to  pull  down  walls  and  erect  an  enclosure  around  ^ 
burned  premises  pursuant  to  municipal  directions  does  not  amount  to 
an  eviction  of  the  lessee,  who  continues  liable  on  his  express  covenant 
to  pay  rent.^^*  The  same  principle  applies  where  a  lessee  enters  to 
repair  premises  injured  by  a  flood,  being  under  no  obligation  to 
do  so.^'^^ 

"Until  the  term  commences  and  possession  is  given  of  the  demised 
premises,  the  lease  is  only  an  executory  contract  on  the  part  of  the 
lessor ;  for  the  breach  of  which  he  may  be  prosecuted  in  the  same  man- 
ner as  upon  any  other  executory  contract.  And  so  it  is  on  the  part  of 
the  lessee.  Before  the  term  commences  he  has  only  an  interesse  termini 
and  no  estate ;  a  right  to  a  term  at  a  future  day ;  but  there  is  no  priv- 

=^  White  v.  Stuart,  76  Va.  546.  Land  Co.,  2  Tex.  Civ.  App.  326,  21 

««"  Linn  v.  Ross,  10  Ohio  412.  S.  W.  959. 

'""Harris   v.   Heackman,   62    Iowa  "^  Jones  v.  Springfield  &c.  Co.,  65 

411,  17  N.  W.  592.  Mo.  App.  388. 

^'^  Peterson  v.  Edmonson,  5  Harr.  ^*  Fleming  v.  King,  100  Ga.  449. 

(Del.)  378.  28  S.  E.  239. 

"^Jemison  v.  McDaniel,  25   Miss.  ""Peterson  v.  Edmonson,  5  Harr. 

83;    Galveston   City   R.   Co.   v.   Gulf  (Del.)  378. 


789 


ABATEMEXT  OF  KENT. 


[§  676 


ity  of  estate  between  parties  until  the  term  commences  and  joossession 
is  given."  Hence  the  lessee  is  not  liable  for  rent  when  buildings  de- 
mised burn  before  he  enters  into  possession.-''^ 

§  676.  When  premises  have  burned  down  and  the  landlord  has  col- 
lected insurance,  a  court  of  equity  will  not  prevent  him  from  collect- 
ing the  rent  even  though  he  refuses  to  rebuild,  if  he  should  be  under 
no  covenant  to  repair.- '^  It  does  not  atfect  the  application  of  the  com- 
mon law  rule  that  the  lessor  has  insured  the  buildings  against  fire 
and  collected  the  insurance  on  them.-'^^  Furthermore,  a  provision  that, 
in  case  of  destruction  by  fire,  the  lessee  shall  be  relieved  from  his 
covenant  to  repair  does  not  prevent  him  from  continuing  liable  for 
rent.  It  was  not  agreed  that  the  destruction  should  amount  to  a 
termination  of  the  lease.-"^  A  statutory  obligation  on  the  landlord 
to  repair,  not  extending  to  rebuilding,  would  not  change  the  rule  as 
to  continued  liability  for  rent  after  destruction  of  the  premises,-^'' 

A  covenant  by  a  lessor  to  build  on  land  included  in  the  leased  prem- 
ises does  not  bind  him  to  rebuild  in  case  of  the  destruction  of  the 
premises  by  fire,  and  in  spite  of  the  destruction  the  lessee  would 
continue  liable  on  his  express  covenant  to  pay  rent.^®^ 


-'«Wood  V.  Hubbell,  5  Barb.  (N. 
Y.)  601. 

="  Gluck  V.  Baltimore,  81  Md.  315, 
32  Atl.  515;  Leeds  v.  Cheetham,  1 
Sim.  146;  Loft  v.  Dennis,  1  E.  &  E. 
474,  102  E.  C.  L.  472;  Belfour  v. 
Weston,  1  Term  R.  310;  Holtzapffel 
v.  Baker,  18  Ves.  115.  In  Kansas  a 
different  rule  seems  to  prevail.  Jus- 
tice Brewer  says:  "Insurance,  now 
so  common,  works  a  ctiange  in  the 
relative  position  of  the  parties. 
Formerly  the  landlord  was,  to  a 
great  extent,  at  the  mercy  of  the 
tenant,  who  could  put  an  end  to  his 
liability  by  firing  the  building  with- 
out probability  of  detection.  The 
burden  of  such  a  loss  would  fall  up- 
on him  who  had  so  little  means  of 
prevention  or  detection;  hence  one 
source  of  protection  was  to  con- 
tinue the  liability  for  rent.  But  to- 
day the  rule  is  insurance.  By  this, 
fire  only  changes  the  character  of 
the    owner's    property    from    build- 


ings to  money — often  a  welcome 
change.  And  if  the  landlord  gets 
the  value  in  money,  which  he  may 
put  at  interest,  he  certainly  ought 
not  to  receive  rent  for  that  which 
has  ceased  to  exist,  and  thus  double 
his  profits,  especially  where  the  in- 
surance premiums  are  paid  by  the 
tenant."  Whitaker  v.  Hawley,  25 
Kan.  674. 

-''  Kingsbury  v.  Westfall,  61  N.  Y. 
356;  Sheets  v.  Selden,  7  Wall.  (U. 
S.)  416;  Magaw  v.  Lambert,  3  Pa. 
St.  444;  Bussman  v.  Ganster,  72  Pa. 
St.  285. 

="Ward  V.  Bull,  1  Fla.  271;  Hill 
V.  Wilson,  15  Ky.  L.  R.  814;  Belfour 
V.  Weston,  1  Term  R.  310;  Haltzapf- 
fel  V.  Baker,  18  Ves.  115;  Davis  v. 
George,  67  N.  H.  393,  39  Atl.  979; 
Beach  v.  Farish,  4  Cal.  339. 

='»  Mayer  v.  Morehead,  106  Ga.  434, 
32  S.  E.  349. 

="Gowell  v.  Lumley,  39  Cal.  151. 


'§•  677]  RENT  AXD  ITS  RECOVERY.  790 

§  677.  The  general  rule  of  the  common  law  as  stated  above  is  pred- 
icated upon  the  assumption  that  an  interest  in  the  land  or  soil  upon 
which  the  burned  buildings  stood  passed  under  the  lease.  The  rule 
is  limited  in  that  the  destruction  must  not  be  of  the  entire  premises 
leased.  There  must  be  something  of  the  subject-matter  of  the  lease 
remaining.  For  if  the  estate  is  gone,  and  the  subject-matter  or  thing 
leased  no  longer  exists,  the  liability  for  rent  ceases.  For  rent  is  a 
certain  profit,  issuing  out  of  lands  and  tenements  corporeal,  in  com- 
pensation for  its  use  and  occupation.  When  the  land  or  tenement 
ceases  to  exist,  the  rent  which  issues  out  of  it,  and  is  but  an  incident 
to  it,  of  necessity  must  cease.^^^  "We  understand  the  law  to  be," 
remarks  the  Supreme  Court  of  Arkansas,  "that  where  a  lessee  takes  an 
interest  in  the  soil  upon  which  a  building  stands,  and  the  building 
should  be  destroyed  by  fire,  he  will  be  held  for  the  rent  of  the  entire 
property,  unless  he  stipulates  against  casualties;  but  if  he  takes  no 
interest  in  the  soil,  and  the  building  is  destroyed,  the  rule  would  be 
otherwise."^^^  When  the  subject-matter  of  an  alleged  lease  is  de- 
stroyed, the  estate  of  both  lessor  and  lessee  ends,  the  relation  of  land- 
lord and  tenant  can  no  longer  survive,  so  that  an  instruction  wliich  in 
effect  informed  the  jury  that  the  leasehold  estate  of  the  tenant  con- 
tinued after  destruction  of  the  subject-matter  of  the  lease  is  er- 
roneous.^^* 

In  regard  to  when  an  interest  in  the  land  passes,  the  general  rule 
is  well  settled  that  the  grant  of  a  house,  store,  mill,  or  other  building 
carries  with  it  the  land  under  the  building.^s^  jf  ^  lessee  has  an 
estate  in  land  for  a  term  for  years,  though  the  lessor  is  not  bound  to 
rebuild  after  a  destruction  by  fire,  yet  any  building  which  he  might 
erect  would  become  a  part  of  the  realty  and  would  inure  to  the  benefit 
of  the  lessee  during  the  term.-^*'    A  demise  of  the  basement  rooms  of 

=82  Chamberlain  v.  Godfrey,  50  Ala.  11  Ore.  143,  3  Pac.  173;   Beham  v. 

530;    McMillan  v.  Solomon,  42  Ala.  Ghio,  75  Tex.  87,  12  S.  W.  996;  Por- 

356,   94   Am.    Dec.    654;    Warren   v.  ter  v.  Full,  6  Wash.  408,  33  Pac.  965; 

Wagner,   75  Ala.  188;    Cook  v.  An-  Smith  v.  McLean,  123  111.  210,  14  N. 

derson,  85  Ala.  99,  4  So.  713;   Ains-  E.  50. 

worth  V.  Ritt,  38  Gal.  89;   Buerger  2S3  Buerger  v.  Boyd,  25  Ark.  441. 

V.   Boyd,   25   Ark.   441;    Womack  v.  =**Utah    Optical    Co.   v.    Keith,   18 

McQuarry,    28    Ind.    103;    Shawmut  Utah  464,  56  Pac.  155. 

Nat.  Bank  v.  Boston,  118  Mass.  125;  =^=  Blake  v.  Clark,  6  Me.  436;  For- 

Lieberthal      v.      Montgomery,      121  bush  v.  Lombard,  13  Mete.   (Mass.) 

Mich.  369,  80  N.  W.  115;   Austin  v.  109;   Oliver  v.  Dickinson,  100  Mass. 

Field,  7  Abb.  Pr.  N.  S.   (N.  Y.)   29;  114;  Rogers  v.  Snow,  118  Mass.  118. 

Graves  v.  Berdan,  26  N.  Y.  498,  29  =»"  Rogers  v.  Snow,  118  Mass.  118. 
Barb.   100;    Harrington  v.   Watson, 


791  ABATEMENT  OF  RENT.  [§  677 

a  building  of  several  stories  in  height,  without  any  stipulation,  by 
lessor  or  lessee,  for  rebuilding  in  case  of  fire  or  other  casualty,  gives 
the  lessee  no  interest  in  the  land,  though  he  pays  all  the  rent  in  ad- 
vance, and  if  the  whole  building  is  destroyed  by  fire  his  interest  in 
the  rooms  is  terminated.^^^  The  lessee  would  have  no  right  to  erect 
a  new  building,  within  the  compass  of  the  rooms  formerly  occupied 
by  him,^^^  or  to  move  another  house  on  the  land.^^^ 

A  case  is  not  brought  within  the  exception  under  consideration,  if 
it  appears  that  the  whole  building  is  not  destroyed,  and  there  is  no 
such  destruction  of  the  leased  room  as  to  deprive  the  tenant  of  the 
right  of  occupancy  for  the  purpose  of  repairing  it  so  as  to  make  it 
tenantable.  There  is  then  no  question  of  rebuilding  the  whole  struc- 
ture; but  simply  a  matter  of  internal  repairs.  The  lessor  would  have 
no  right  to  enter  to  make  such  repairs  without  the  consent  of  the 
lessee.^^" 

If  an  advance  payment  of  rent  is  a  voluntary  one,  and  there  is  no 
covenant  in  the  lease  to  repay  the  rent  in  case  of  fire,  the  lessee  cannot 
recover  prepayments  though  he  can  resist  subsequent  claims. ^''^  But 
the  case  seems  different  under  a  contract  for  payment  in  advance. 
Such  a  contract  does  not  apportion  the  risk  or  settle  that  the  tenant 
assumes  the  risk  of  losing  the  rent  paid  in  advance,  and  the  landlord 
assumes  the  risk  of  losing  subsequent  payments  and  the  building. 
It  cannot  be  presumed  that  because  a  lessee  pays  in  advance  he  has  in 
mind  a  different  degree  of  liability  in  case  of  the  destruction  of  the 
leased  premises  by  fire.  It  is  simply  a  prudential  requirement  on  the 
part  of  the  lessor  to  secure  the  rent.  There  is  no  difference  in  prin- 
ciple, so  far  as  fixing  liability  is  concerned,  whether  the  contract  is 
to  pay  the  rent  monthly  in  advance  or  monthly  at  the  end  of  the 
term.^®^ 

In  Kentucky  no  exception  to  the  general  common-law  rule  as  to 
liability  for  rent  after  destruction  by  fire  has  been  recognized,  and  so, 
in  a  case  arising  in  that  state,  the  tenant  of  one  room  or  apartment  in 
a  building  containing  several  rooms  was  held  liable  for  the  rent  of 
his  room  for  the  entire  term,  although  the  entire  building  was  de- 
stroyed by  fire  seven  months  before  the  expiration  of  his  term.-^^ 

^  Stockwell  V.   Hunter,   11   Mete.  -"  Lieberthal  v.   Montgomery,  121 

(Mass.)    448;    Kerr    v.    Merchants'  Mich.  369,  80  N.  W.  115. 

Exch.  Co.,  3  Edw.  Ch.  (N.  Y.)  315.  ^''^^ Porter  v.  Tull,  6  Wash.  408,  33 

^''^Winton  v.  Cornish,  5  Ohio  477.  Pac.  965. 

=^  Harrington  v.  Watson,  11  Ore.  ^' Helburn    v.    Mofford,    7    Bush 

143,  3  Pac.  173.  (Ky.)    169. 

^'"Lieberthal  v.   Montgomery,  121 
Mich.  369,  80  N.  W.  115. 


§    6T8]  RENT  AXD  ITS  RECOVERY.  792 

§  678.  In  Nebraska  there  has  been  a  vigorous  protest  against  the 
common-law  rule  of  continued  liability  on  express  covenants  after  the 
destruction  of  the  premises.  It  was  argued  by  the  Supreme  Court  of 
that  state  that  a  lease  is  not  a  bargain  and  sale  for  a  given  time  of 
the  lessor's  interest,  but  is  rather  a  hiring  or  letting  of  property  for  a 
certain  time.  The  promise  to  pay  a  stated  sum  of  money  as  rent  for 
leased  premises  for  a  certain  term  is  based  upon  the  presumption  that 
the  leased  premises  shall  exist  for  the  term.  Xeither  party  had  in  mind 
the  possibility  that  the  leased  premises  might  be  destroyed;  they  did 
not  contract  with  reference  to  such  a  casualty.  There  was  an  offer  and 
a  promise  on  the  part  of  the  lessor  to  furnish  the  hired  property  for  the 
entire  time,  and  a  covenant  upon  the  part  of  the  lessee  to  pay  rent  for 
the  right  to  use  and  occupy  the  hired  property  if  it  existed.  It  was  not 
a  proposition  on  the  part  of  the  lessor  to  quitclaim  his  right  to  the 
use  and  occupancy  of  the  leased  premises.  The  rule  of  construction 
of  the  common  law  is  a  harsh  and  technical  one  and  the  common-law 
rule  is  not  in  force  in  Nebraska,  but  the  rule  is  as  follows:  Where 
a  substantial  portion  of  leased  premises  is  destroyed  without  the 
fault  of  the  lessee,  he  is  entitled  to  an  apportionment  of  the  rent 
covenanted  to  be  paid  and  accruing  thereafter,  in  the  absence  of  an 
express  assumption  by  him  of  the  risk  of  such  destruction.^^*  De- 
■  cisions  of  similar  import  are  to  be  found  in  South  Carolina,  in  a  case 
where  a  building  was  rendered  untenantable  by  a  hurricane,-^^  and 
in  Kansas,  where  the  leased  buildings  were  burned.-^"  In  South 
Carolina  the  law  as  finally  settled  seems  to  be  that  destruction  of 
leased  premises  by  fire  does  not  relieve  a  lessee  from  his  express 
covenant  to  pay  rent,  as  that  could  reasonably  be  considered  as  within 
the  contemplation  of  the  parties;  but  where  the  destruction  of  the 
subject-matter,  out  of  which  rent  is  reserved,  is  by  an  act  of  God  or 
public  enemies,  the  tenant  may  elect  to  rescind,  and  by  surrendering 
benefits  under  the  lease  shall  be  discharged  from  the  payment  of 
rent.  Unless  the  tenant  surrendered  the  premises  he  would  be  liable 
for  rent  during  the  entire  term.^^^  The  same  distinction  between  de- 
struction by  fire  and  by  the  public  enemies  prevails  in  :\Iississippi, 
and  it  is  there  declared  to  be  the  common-law  rule.-^^  In  Kansas  the 
doctrine  has  been  announced  that  where,  by  a  single  instrument,  real 

-''^  Wattles  V.  South  Omaha  &c.  Co.,  ="  Coogan  v.  Parker,  2  S.  Car.  255; 

50  Neb.  251,  69  N.  W.  785.  Bayly  v.  Lawrence,  1  Bay.  (S.  Car.) 

='=  Ripley  v.  Wightman,  4  McCord  499. 

(S.  Car.)  447.  =="*  Taylor  v.  Hart,  73  Miss.  22,  18 

=°°  Whitaker   v.    Hawley,    25    Kan.  So.  546. 
674. 


793  ABATEMEXT   OF  RENT.  [§'   679 

and  personal  property  are  leased  for  a  gross  rental,  and  the  person- 
alty is  a  substantial  part  of  the  leased  property,  upon  a  total  destruc- 
tion by  accidental  fire,  the  lessee  is  entitled  to  an  abatement  of  the 
rent  equal  to  the  proportionate  rental  value  of  the  personalty.  ^^^ 

§679.  A  provision  that,  if  premises  are  destroyed  by  fire,  rent 
shall  be  suspended  until  they  are  put  in  proper  condition  for  use,  by 
the  lessor,  implies  that  the  lease  is  to  continue  though  the  building 
should  be  destroyed.^""  A  provision  of  this  nature,  that  in  case  the 
premises  are  destroyed  the  lessee  shall  not  be  liable  for  rent  till  they 
have  been  put  in  order  again,  is  not  an  ordinary  covenant  in  a  lease, 
however.3"^  Such  a  stipulation  does  not  have  the  effect  of  putting  an 
end  to  the  lease  or  bringing  the  term  to  a  close.  The  lease  containing 
no  provision  that  the  liability  for  the  taxes  shall  either  be  terminated, 
or  subject  to  any  apportionment,  a  promise  to  pay  the  taxes  during 
the  term  is  absolute  and  unconditional,  and  so  long  as  the  term  con- 
tinues the  lessees  continue  liable  for  their  payment.  Taxes  are  not  a 
part  of  the  rent  where  the  lease  distinguishes  between  rent  and 
taxes.^°2  Although  there  is  no  express  provision  that  the  suspension 
of  rent  is  limited  to  the  time  when  the  premises  are  untenantable,  if 
the  building  is  repaired  in  a  proper  manner,  and  with  reasonable  dili- 
gence and  at  once  tendered  to  the  lessee,  he  is  bound  to  continue  the 
term.  The  lessor  by  virtue  of  the  clause  in  the  lease,  and  his  general 
ownership  of  the  property,  has  a  legal  interest  in  the  speedy  repair 
of  the  building;  and,  after  the  lessee  waives  his  right  to  repair  and 
repudiates  the  lease  in  toto,  the  lessor  has  the  right  to  go  forward  and 
make  the  repairs  in  a  proper  manner  and  with  reasonable  expedition 
and  hold  the  lessee  to  his  contract  subject  to  suspension  of  rent  for  the 
time  the  building  is  untenantable.^"^ 

Under  a  stipulation  that  in  case  the  premises  are  damaged  by  fire, 
no  rent  shall  be  paid  "while  they  are  unfit  for  occupancy,"  damages 
by  fire  are  not  to  terminate  the  lease,  but  to  stop  the  payment  of  rent 
merely,  while  the  premises  are  unfit  for  occupancy.  The  duty  to  re- 
pair, then  resting  on  the  landlord,  carries  with  it  the  right  of  entry 
and  of  reasonable  temporary  occupancy  for  the  purpose  of  repairing, 
and  it  must  be  done  within  a  reasonable  time.^"*    But  if  the  provision 

==»»  Whitaker   v.    Hawley,    25   Kan.  '»=Minot  v.  Joy,  118  Mass.  308. 

674;    Vale   v.   Trader,   5   Kan.  App.  '"^Phillips  &c.   Mfg.   Co.  v.   Whit- 

307,  48  Pac.  458.  ney,  109  Ala.  645,  20  So.  333. 

'""Rogers  v.  Snow,  118  Mass.  118.  ="  Smith  v.  McLean,  123   111.  210, 

'"'Eaton    V.    Whitaker,    18    Conn.  14  N.  E.  50;  Kellenberger  v.  Fores- 

222,  223.  man,  13  Ind.  475.    If  the  lessor  fails 


§    679]  EEXT  AND  ITS  KECOVERT.  794 

is  that  rent  shall  cease  altogether  upon  the  destriiction  of  the  premises 
by  fire,  the  lessee  must  surrender  the  premises,  on  the  occurrence  of 
such  event.  Any  other  construction  would  work  injustice  and  con- 
travene the  plain  purpose  and  design  of  the  parties.^"^ 

A  clause  relating  to  the  suspension  of  rent  refers  to  such  injury  to 
the  premises  as  cannot  be  repaired,  but  necessitates  a  rebuilding  of 
the  premises ;  when  covenants  by  the  lessee  to  repair  are  considered  in 
conjunction  with  a  provision  for  the  suspension  of  rent,  it  seems  evi- 
dent that  such  provision  was  intended  solely  to  relieve  the  lessees 
from  this  common-law  liability  to  pay  rent  in  case  of  the  destruction 
of  the  leased  premises  by  fire.  Mere  injury  to  scenery  and  fixings  by 
smoke  and  water,  rendering  occupation  unpleasant,  does  not  bring  a 
case  within  the  terms  of  a  lease  relating  to  the  suspension  of  rent.^°^ 
Upon  the  setting  up  of  such  a  defense,  it  is  proper  to  consider  the  con- 
dition of  the  premises,  their  situation,  the  business  for  which  they  are 
used,  or  intended  to  be  used,  and  whether  they  were  occupied  at  the 
time  of  the  fire,  or  whether  any  business  then  being  carried  on  was 
interrupted,  and  all  the  surrounding  existing  circumstances  in  regard 
to  the  premises  at  the  time  of  the  fire.  If  the  lessee  had  no  right  to 
sub-let,  the  question  whether  the  premises  were  unfit  for  occupancy 
by  a  sub-lessee  is  not  available  as  a  defense.  That  injuries  which  can 
be  repaired  for  a  few  dollars  do  not  justify  a  jury  in  finding  that  there 
was  such  substantial  and  material  damage  as  to  render  the  premises 
unfit  for  occupancy  is  common  sense  and  common  knowledge.  A 
large  portion  of  the  business  of  the  country  is  carried  on  through 
rented  premises,  and  it  would  be  a  dangerous  precedent  to  hold  that 
a  valuable  lease  could  be  nullified  for  a  trifling  injury .^^'^ 

A  finding  that  the  lessees,  by  the  payment  of  rent,  elected  to  con- 
sider the  premises  not  untenantable,  and  that  they  were  not  un- 
tenantable as  to  them,  is  sustained  by  the  evidence,  if  it  shows  that 
they  remained  in  possession  after  a  fire  and  continued  to  occupy  them 
and  conduct  their  business  and  pay  rent  as  usual,  without  claim  that 
the  premises  were  untenantable,  or  notice  to  the  lessor  to  repair.^''® 

The  explosion  of  a  boiler  occurring  without  any  negligence  on  the 

to  repair  within  the  specified  time  ^"^  Lewis  v.  Hughes,  12  Colo.  208, 

in  a  case  where  time  for  repairs  was  20  Pac.  621. 

specified,   the    lease    is    terminated.  '"^  Wampler     v.     Weinmann,      56 

Florsheim  v.  Dullaghan,  58  111.  App.  Minn.  1,  57  N.  W.  156. 

626.  '"'  Tatum    v.    Thompson,    86    Cal. 

^o'  Buschman    v.    "Wilson,    29    Md.  203,  24  Pac.  1009. 
553;    Gates   v.    Green,    4    Paige    (N. 
Y.)  355. 


1 


795  ABATEMEXT  OF  RENT.  [§    680 

part  of  the  lessee  has  been  regarded  as  the  happening  of  a  casualty 
causing  damage  to  the  demised  building,  which  was  within  the  terms 
of  a  lease  suspending  rent  until  repairs  were  completed  by  the  lessor.^"^ 
But  the  question  whether  an  overflow  caused  by  an  extraordinary  flood 
of  water  is  a  casualty  within  the  meaning  of  the  covenants  of  a  lease 
is  one  of  fact  for  the  jury  under  proper  instructions.^^*' 

The  effect  of  a  covenant  by  the  lessor  to  repair  on  the  continued 
liability  of  the  lessee  for  rent  after  destruction  of  the  premises  is  not 
to  suspend  the  rent  but  if  the  lessor  fails  to  perform  such  a  covenant, 
the  damages  from  such  non-performance  would  exactly  offset  the  rent 
subsequently  becoming  due  under  the  lease.  Therefore  the  lessee 
would  have  a  complete  defense  when  sued  for  rent.^^^  A  lease  of  mills 
provided  that  "the  tenant  was  to  keep  up  repairs,  except  heavy  re- 
pairs ...  in  [which]  case  it  was  to  be  repaired  by  the  landlord 
in  a  reasonable  time  after  the  injury  and  he  was  not  to  lose  the  rent 
if  he  should  go  on  to  do  the  work  according  to  contract,"  and  the  mill 
was  totally  destroyed  by  fire.  It  was  held  that  if  the  landlord  refused 
to  make  the  heavy  repairs  he  was  to  lose  the  rent.  This  was  a  neces- 
sary implication  from  the  words  used ;  for  it  would  have  been  idle  to 
say  he  was  not  to  lose  the  rent  if  he  went  on  with  the  repairs,  if  the 
parties  did  not  understand  that  his  failure  to  make  them  should  de- 
prive him  of  the  rent.^^^ 

§  680.  A  case  where  a  leased  building  is  torn  down  under  power  of 
eminent  domain  to  widen  a  street  is  not  covered  by  a  provision  in  a 
lease  that  rent  shall  cease  if  the  premises  become  imtenantable  by  fire 
or  other  casualty.  In  the  eyes  of  the  law  such  acts  are  no  injury  to  the 
tenant  because  damages  are  awarded  to  him  for  such  taking."^  "When 
there  is  a  leasehold  interest  in  land  taken  under  the  power  of  eminent 
domain,  the  lessee  is  entitled  to  just  compensation  for  the  value  of  his 
interest,  precisely  as  the  landlord  is  entitled  to  compensation  for  the 
value  of  his  interest,  and  the  sum  of  these  values  must  be  the  full 
value  of  the  property  taken.^"  A  taking  of  part  of  demised  land  by 
condemnation  is  not  an  eviction,^^^  and  the  tenant  remains  liable, 

^"9  John  Morris  Co.  v.  Southworth,  ^n  ^y^jjig  y    Baehr,   24   Wend.    (N. 

154  111.  118,  39  N.  E.  1099.  Y.)  254.     See  §  362. 

""  Miland    v.    Meiswinkel,    82    111.  "'  New  York  &  B.  Bridge  v.  Clark, 

App.  522.  137  N.   Y.  95,  32   N.  E.   1054;    Burt 

"^  Union  Water  Power  Co.  v.  Pin-  v.  Merchants'  Ins.  Co.,  115  Mass.  1; 

gree,  91  Me.  440,  40  Atl.  333.  Gluck  v.  Baltimore,  81  Md.  315,  32 

"'^^  Thompson  v.  Pendell,  12  Leigh  Atl.  515;  §  643. 

(Va.)  591.  '1"  Gluck  v.  Baltimore,  81  Md.  315, 


681] 


EENT  AND  ITS  RECOVERY. 


796 


under  his  covenant,  to  pay  the  rent  originally  reserved,  because  noth- 
ing short  of  a  surrender,  a  release,  or  an  eviction  will  discharge  him.^^* 

§  681.  In  many  jurisdictions  the  rule  of  the  common  law  as  to  con- 
tinued liability  for  rent  after  destruction  of  the  premises  has  been 
abolished  or  modified  by  statutes.  Thus,  in  New  Jersey  such  a  change 
was  made  in  187-i;^^^  and  in  Minnesota  in  1883.^^*  In  Virginia  a 
lessee  is  not  liable  on  covenants  to  repair,  or  to  pay  rent,  after  the 
destruction  of  the  premises  unless  such  was  the  intention  of  the  par- 
ties as  evidenced  by  their  written  contract.^^^  Such  statutes  would 
not  be  retroactive  in  their  effect,^-*'  following  the  general  rule  in  this 
respect. 

In  New  York,  Ohio  and  Minnesota,  the  acts  provide  that  upon  the 
destruction  or  injury  of  leasehold  buildings  so  that  they  are  unten- 
antable,'the  tenant  shall  not  be  liable  or  bound  to  pay  rent,  and  that 
he  may  thereupon  quit  and  surrender  the  possession  of  the  premises. 
The  tenancy  is  not  made  obsolutely  to  cease,  except  at  the  option  of 
the  tenant.  He  is  relieved  from  his  obligation,  if  he  chooses  to  avail 
himself  of  the  provisions  of  the  act,  or  he  may  perform  the  covenants 
of  his  lease  and  retain  the  benefit  of  it ;  but  he  cannot  have  the  benefits 
of  the  law  and  at  the  same  time  repudiate  its  obligations.  Such  is 
manifestly  the  correct  interpretation  of  these  statutes.  If  the  tenant 
elects  to  be  free  from  his  obligations,  the  statute,  by  necessary  impli- 
cation, imposes  as  a  condition  the  surrender  of  the  premises.^^^  In 
the  latter  jurisdiction  it  has  been  suggested  that  a  tenant  might  re- 
sume possession  after  repairs  were  made  and  at  the  same  time  be  re- 
lieved from  paying  rent  while  he  was  deprived  of  the  use  of  the  prem- 
ises.^^^ 


32  Atl.  515;  Dyer  v.  Wightman,  66 
Pa.  St.  425;  Emmes  v.  Feeley,  132 
Mass.  346;  Stiibbings  v.  Evanston, 
136  111.  37,  26  N.  E.  577,  11  L.  R.  A. 
839;  Corrigan  v.  Chicago,  144  111. 
537,  33  N.  E.  746,  21  L.  R.  A.  212. 

s^^Gluck  v.  Baltimore,  81  Md.  315, 
32  Atl.  515.  A  landlord  is  not  liable 
to  his  tenant  for  damages  incurred 
on  the  leased  building  being  torn 
down  by  city  authorities  as  danger- 
ous or  unlawful,  unless  the  landlord 
procured  it  to  be  done.  Hitchcock 
v.  Bacon,  118  Pa.  St.  272,  12  Atl.  352. 


^"  Coles  v.  Celluloid  Mfg.  Co.,  39 
N.  J.  L.  326. 

^'^Lanpher  v.  Glenn,  37  Minn.  4, 
33  N.  W.  10. 

^"  Richmond  Ice  Co.  v.  Crystal  Ice 
Co.,  99  Va.  239,  38  S.  E.  141. 

=^  Coles  v.  Celluloid  Mfg.  Co.,  39 
N.  J.  L.  326. 

^"  Johnson  v.  Oppenheim,  55  N.  Y. 
280;  Gay  v.  Davey,  47  Ohio  St.  396, 
25  N.  E.  425;  Boston  Block  Co.  v. 
Buffington,  39  Minn.  385,  40  N.  W. 
361. 

^^  Boston  Block  Co.  v.  Buffington, 
39  Minn.  385,  40  N.  W.  361. 


I 


'^97       .  ABATEMENT  OF  KENT.  [§    681 

In  Connecticut  the  statute  on  this  topic  gives  the  option  to  the 
lessor  in  place  of  the  lessee.  If  the  lessor  would  avail  himself  of  the 
provisions  of  this  act,  he  must  make  the  necessary  repairs  with  rea- 
sonable diligence.  The  obligation  to  pay  rent  after  the  building  is 
repaired  is  not  a  new  statutory  obligation,  but  a  contract  obligation 
revived  by  the  statute.  Furthermore  the  Connecticut  act  has  been 
held  to  apply  to  the  leasing  of  rooms  in  a  building  as  well  as  to  a 
demise  of  an  entire  building.^^i  jj^  ^^^^^  ^^  ^laYe  the  statute  apply, 
the  building  must  become  untenantable  by  some  sudden  and  unex- 
pected injury  and  not  by  mere  decay.  The  statute  manifestly  has  no 
reference  to  ordinary  repairs,  such  as  the  lessee  at  common  law  is 
bound  to  make.  It  applies  only  to  cases  where  the  building  becomes 
untenantable  by  reason  of  some  sudden  and  unexpected  calamity;  as 
where  it  is  wholly  or  partially  destroyed  by  fire,  water,  or  by  a  mob, 
or  other  like  cause.  It  was  designed  to  relieve  the  tenant  of  the  bur- 
den of  paying  rent  after  it  had  become  impossible  for  him  to  use  and 
occupy  the  premises  leased.^-^ 

In  conformity  with  this  principle  the  New  York  courts  have  held 
that  the  act  affording  a  tenant  relief  in  that  state  does  not  apply  to 
a  case  where  the  premises  were  out  of  repair  at  the  time  of  letting. 
It  never  could  have  been  the  intention  of  the  statute  that  a  tenant 
might  hire  a  dilapidated  house  for  a  certain  time,  and  then  with- 
out any  material  change  in  its  condition,  he  should  have  the  right 
to  quit  and  surrender  it  whenever  he  pleased.^-''  Nor  would  the  act 
apply  to  a  case  where  the  occupants  of  a  flat  were  annoyed  by  unpleas- 
ant and  unwholesome  odors. ^^''' 

^='The    statute    in    force    in    that  '=*  Miller  v.  Benton,  55  Conn.  529, 

state  is  as  follows:    "The  tenant  of  13  Atl.  678. 

any  tenement  which  may  be,  with-  ^-=  Hatch  v.  Stamper,  42  Conn.  28. 

out  his  fault  or  neglect,  so  injured  ^-•'Bloomer  v.  Merrill,  1  Daly   (N. 

as  to  be  unfit  for  occupancy  shall  Y.)   485. 

not  be  liable  to  pay  rent  after  such  ^"  Sutphin  v.  Seebas,  12  Daly  (N. 
injury  so  long  as  such  tenement  is  Y.)  139.  In  a  lease  of  an  old  build- 
untenantable,  if  he  continue  to  oc-  ing  the  tenant  covenanted  to  repair, 
cupy,  unless  it  be  otherwise  express-  He  stored  extra  heavy  materials  in 
ly  provided  by  written  agreement;  the  building  which  caused  some  new 
and  in  case  of  such  injury  he  may  floors  put  in  by  tenant  to  settle  and 
ruit  possession  of  such  tenenment;  a  fall  of  snow  caused  a  further  set- 
but  if  the  same  shall  become  fit  for  tling.  On  this  state  of  circum- 
occupancy  during  the  continuance  of  stances,  the  statute  making  it  un- 
his  lease,  he  shall  then  pay  the  rent  necessary  for  tenant  to  pay  rent 
and  may  again  occupy  it."  Gen.  St.  when  premises  were  damaged  by 
of  Conn.  1902,  §  4045.  the  elements  did  not  apply  because 


681] 


RENT  AND  ITS  EECOVERY, 


798 


The  mere  building  upon  or  other  improvement  of  an  adjoining  lot, 
by  which  demised  premises  are  rendered  less  commodious  of  occupa- 
tion or  less  suitable  to  the  uses  of  the  tenant  does  not  affect  the  right 
of  the  landlord  to  his  rent,  or  authorize  the  tenant  to  terminate  the 
lease  and  abandon  the  premises,^^^  and  a  statute  of  the  kind  under 
consideration  does  not  give  the  tenant  relief.^-^  Under  a  statute 
providing  for  the  two  alternatives  when  the  premises  are  destroyed 
or  injured,  the  first  alternative  has  reference  to  a  sudden  and  total 
destruction,  the  latter  has  reference  to  a  case  of  injury  to  the  prem- 
ises short  of  a  total  destruction.  If  the  legislature  had  intended  to 
provide  that  the  tenant  should  cease  to  be  liable  for  rent  when  the 
premises  from  any  cause  became  untenantable,  it  would  have  been  easy 
to  have  expressed  the  intent  in  apt  and  proper  language.^^" 


acts  of  the  tenant  were  partly  the 
cause.  The  tenant  still  continued 
liable  to  make  repairs.  McMann  v. 
Autenreith,  17  Hun   (N.  Y.)   163. 

^=*  Johnson  v.  Oppenheim,  55  N.  Y. 
280;  Hazlett  v.  Powell,  30  Pa.  St. 
293;  Palmer  v.  Wetmore,  2  Sandf. 
(N.  Y.)  316;  Myers  v.  Gemmel,  10 
Barb.  (N.  Y.)  537;  Hilliard  v.  New 
York  &c.  Co.,  41  Ohio  St.  662. 

^=»  Hilliard  v.  New  York  &c.  Co., 
41  Ohio  St.  662. 

''"  Suydam  v.   Jackson,   54   N.   Y. 


450;  Hilliard  v.  New  York  &c.  Co., 
41  Ohio  St.  662.  Under  act  of  1860 
releasing  lessee  of  a  building  from 
liability  for  rent  after  injury  to  the 
building  making  it  untenantable, 
"unless  otherwise  expressly  pro- 
vided by  written  agreement,"  it  does 
not  constitute  a  waiver  for  a  lease 
to  contain  a  provision  that  in  case 
the  tenant  abandons  his  premises  at 
any  time,  the  rent  then  due  and  to 
become  due  shall  be  due  and  col- 
lectable. Van  V.  Rouse,  94  N.  Y.  401. 


I 


CHAPTER  X. 

ESTOPPEL   TO   DENY   LANDLORD'S   TITLE. 

§  682.  Modem  rule  of  estoppel  to  deny  title  between  landlord  and 
tenant. — In  all  possessory  actions  arising  between  a  landlord  and  his 
tenant  in  respect  to  the  demised  premises,  the  general  rule  is  well  es- 
tablished that  as  long  as  a  tenant  remains  in  possession  of  the  demised 
premises,  he  is  absolutely  precluded  from  denying  the  validity  of  the 
title  under  which  he  entered  or  agreed  to  hold.^    Beside  possessory  ac- 

1  Alabama:     Pugh    v.    Davis,    103  Minn.  294,  75  N.  W.  229;   Allen  v. 

Ala.  316,  18  So.  8;  Barlow  v.  Dahm,  Chatfield,  8  Minn.  435.    Mississippi: 

97   Ala.   415,   12   So.   293;    Davis   v.  Wildy  v.  Doe,  26  Miss.  35;  Winston 

Williams,  130  Ala.  530,  30  So.  488.  v.    President    &c.,    28    Miss.    118; 

Arkansas:    Vinson  v.  Flynn,  64  Ark.  Frazer   v.   Robinson,   42    Miss.    121. 

453,   43   S.   W.   146,   46   S.   W.   186;  Missouri:  Walker  v.  Harper,  33  Mo. 

James  v.  Belding,  33  Ark.  536.    Cali-  592;  Shepard  v.  Martin,  31  Mo.  492; 

fornia:     Pierce   v.   Minturn,   1    Cal.  Green  v.  Missouri  &c.  R.  Co.,  82  Mo. 

470;    Burgess  v.  Rice,   74   Cal.   590,  653.      Montana:    Alderson    v.    Mar- 

16    Pac.    446.      Colorado:    Milsap   v.  shall,    7    Mont.    288,    16    Pac.    576. 

Stone,  2   Colo.   137.     Florida:    Rob-  Nebraska:     Carson    v.    Broady,    56 

ertson   v.   Biddell,    32    Fla.    304,   13  Neb.  648,  77  N.  W.  80.    New  Hamp- 

So.  358;  Winn  v.  Strickland,  34  Fla.  shire:    Russell  v.  Allard,   18   N.   H. 

610,  16  So.  606.     Georgia:   Smith  v.  222;    Plumer  v.   Plumer,   30   N.   H. 

Sutton,  74  Ga.  528.     Illinois:   Baker  558.       North     Carolina:     Heyer     v. 

V.  Pratt,  15  111.  568;  Knefel  v.  Daly,  Beatty,    76    N.    Car.    28;    James    v. 

91  111.  App.  321;    Sexton  v.  Carley,  Russell,   92    N.   Car.    194;    Shew   v. 

147  111.  269,  35  N.  E.  471.     Kansas:  Call,  119  N.  Car.  450,  26  S.  E.  33; 

Pettigrew  v.  Mills,  36  Kan.  745,  14  Shell  v.  West,  130   N.  Car.  171,  41 

Pac.  170.    Louisiana:   Hanson  v.  Al-  S.   E.   65.     North   Dakota:    Nearing 

len,     37     La.     Ann.     732.      Maine:  v.  Coop,  6  N.  D.  345,  70  N.  W.  1044. 

Longfellow   v.    Longfellow,    61    Me.  Oklahoma:  Hager  v.  Wikoff,  2  Okla. 

590;     Heath    v.    Williams,    25    Me.  580,  39  Pac.  281;   Pappe  v.  Trout,  3 

209.       Massachusetts:       Binney     v.  Okla.   260,   41   Pac.   397;    Hamill   v. 

Chapman,     5     Pick.     (Mass.)     124;  Jalonick,  3  Okla.   223,  41  Pac.   139. 

Gage   V.   Campbell,   131   Mass.   566;  Oregon:    Kiernan  v.   Terry,  26  Ore. 

Granger  v.   Parker,   137  Mass.   228.  494,    38    Pac.    671.      Pennsylvania: 

Maryland:       Goodsell     v.     Lawson,  Kline   v.   Johnston,    24    Pa.    St.    72. 

42     Md.     348;     Cook     v.     Creswell,  South  Carolina:   Syme  v.  Sanders,  4 

44     Md.     581.      Michigan:     Lee    v.  Strob.   L.    (S.   Car.)    196;    Darby  v. 

Payne,    4    Mich.    106.      Minnesota:  Anderson,    1    Nott   &   M.    (S.   Car.) 

Morrison  v.  Bassett,  26  Minn.   235,  369;   Wilson  v.  Weathersby,  1  Nott 

2  N,  W.  851;  Sage  v.  Halverson,  72  &    M.    (S.    Car.)    373.      Tennessee: 

799 


§•  683] 


ESTOPPEL  TO  DEXY  LANDLORD  S  TITLE. 


800 


f 


tions,  such  as  ejectment,  writ  of  entry,  trespass  to  try  title,  and  sum- 
mary proceedings,  and  actions  for  rent,  or  use  and  occupation,  or  of 
replevin,  the  rule  of  estoppel  has  been  applied  where  the  lease  is  en- 
tirely distinct  from  the  foundation  of  the  action,  and  the  relation  of 
landlord  and  tenant  can  only  appear  in  evidence,  as  in  trover,^  or  in 
an  application  for  an  injunction  against  waste,^  or  in  a  suit  for  spe- 
cific performance.* 

The  characteristic  and  vital  distinction  between  the  ancient  legal 
estoppel  arising  from  a  demise  by  indenture,  and  the  modern  equitable 
estoppel  in  pais  of  the  tenant  is,  that  the  latter  need  not  be  pleaded, 
but  is  conclusive  in  evidence  in  support  of  a  general  denial  of  the  case 
set  out  or  relied  on  by  the  opposite  party.^  The  existence  of  the  rela- 
tion of  landlord  and  tenant,  as  between  the  plaintiff  and  defendant 
in  an  action  of  ejectment,  is  of  a  vital  and  controlling  importance, 
because  the  tenant  is  estopped  from  disputing  his  landlord's  title, 
so  long  as  he  continues  in  possession  of  the  demised  primses.  After 
taking  possession  on  the  faith  of  his  lease,  or  being  permitted  to 
remain  in  such  possession,  in  recognition  of  the  landlord's  title,  the 


Campbell  v.  Hampton,  11  Lea 
(Tenn.)  440;  Rogers  v.  Waller,  4 
Hayw.  (Tenn.)  205;  Caldwell  v. 
Harris,  4  Humph.  (Tenn.)  24; 
Beaty  v.  Jones,  1  Coldw.  (Tenn.) 
486;  Elliott  v.  Lawless,  6  Heisk. 
(Tenn.)  123,  130.  Vermont:  Tuttle 
V.  Reynolds,  1  Vt.  80;  Congrega- 
tional Society  v.  Walker,  18  Vt.  600. 
Virginia:  Creigh  v.  Henson,  10 
Grat.  231;  Dobson  v.  Culpepper,  23 
Grat.  352.  West  Virginia:  Camp- 
bell V.  Fetterman,  20  W.  Va.  398. 
Wisconsin:  Ricketson  v.  Galligan, 
89  Wis.  394,  62  N.  W.  87.  United 
States:  Willison  v.  Watkins,  3  Pet. 
(U.  S.)  43,  48.  In  a  case  arising 
in  North  Carolina  there  was  a  con- 
veyance to  defendant  in  1879,  with- 
out transfer  of  possession,  a  lease 
to  A  in  1880,  and  A  sub-let  to  de- 
fendant; it  was  held  on  these  facts 
that  the  doctrine  of  estoppel  did 
not  apply,  and  the  defendant  could 
set  up  title  in  himself  without  sur- 
rendering possession  of  the  prem- 
ises to  the  landlord.     Allen  v.  Grif- 


fin, 98  N.  Car.  120,  3  S.  E.  837.  This 
case  seems  clearly  wrong;  it  gives 
an  example  of  just  the  sort  of  case 
where  estoppel  should  apply. 

^Plumer  v.  Plumer,  30  N.  H.  558. 

3  Parker  v.  Raymond,  14  Mo.  535. 

^  Davis  V.  Williams,  130  Ala.  530, 
30  So.  488. 

^  Kiernan  v.  Sanders,  6  A.  &  E. 
515;  Veale  v,  Warner,  1  William 
Saund.  323d,  325.  In  6  Am.  L.  R. 
1,  at  page  9,  it  is  stated  that  "the 
origin  and  character  of  the  tenant's 
estoppel  are  to  be  found  in  the  es- 
sential features  of  the  ancient  ac- 
tion of  assumpsit  for  use  and  occu- 
pation at  a  period  long  antecedent 
to  the  statute  of  George  II,  and  far 
antedating  the  rule  in  actions  of 
ejectment.  .  .  .  Certainly  thp 
estoppel  in  ejectment  is  in  no  way 
derivable  from  the  statute  of 
George  II,  and  its  existence  therein 
further  disproves  the  position  of 
those  who  look  to  that  statute  as 
the  source  of  that  estoppel. 


801  ESTOPPEL  TO  DENY  LANDLORD'S  TITLE.  [§    682 

tenant  is  precluded  from  setting  up  an  outstanding  title  with  a  view 
of  defeating  that  of  the  landlord.^  On  becoming  tenant  of  land  under 
another  the  tenant,  in  contemplation  of  law  and  on  grounds  of  public 
policy  and  in  maintenance  of  sound  morals  and  good  faith,  undertakes 
to  preserve  the  possession  of  the  landlord  and  redeliver  it  and  he  can- 
not do  otherwise  without  a  violation  of  faith. ^ 

The  relation  of  landlord  and  tenant,  with  or  without  deed,  creates 
an  equitable  estoppel,  mutual  in  its  operation.  It  arises  whenever  one 
person  has  obtained  possession  of  the  land  of  another  under  an  obliga- 
tion, express  or  implied,  to  restore  it.  Such  is  the  case  of  a  vendee  in 
possession  and  the  rule  applies  between  mortgagor  and  mortgagee.^ 
The  tenant  of  a  demandant  in  an  ejectment  suit,  entering  under  a 
levy,  is  estopped  to  deny  the  regularity  of  the  process  under  which  the 
levy  was  made.**  Thus  it  has  been  held  that  where  one  takes  posses- 
sion of  land  under  a  contract  to  purchase,  he  cannot  controvert  the 
title  of  the  one  who  let  him  into  possession.^*'  Defendants  in  an  eject- 
ment suit  cannot  hold  possession  under  a  contract  of  purchase,  and  at 
the  same  time  deny  that  the  party  with  whom  the  contract  was  made 
had  title  to  the  property  which  was  the  subject  of  the  contract.  ^^  A 
person  let  into  possession  under  such  an  executory  contract  of  pur- 
chase, looking  up  to  his  vendor  for  a  title,  occupies  as  quasi  tenant, 
and  as  respects  denial  of  title,  the  same  estoppel  exists  between  such 
parties  as  between  landlord  and  tenant.^-  The  reason  of  the  rule  as  to 
estoppel  is  that  one  who  goes  into  possession,  under  another,  shall  not 
be  permitted  to  deny  the  character  in  which  he  went  in ;  and  it  does 
not  matter  whether  the  conventional  relation  of  landlord  and  tenant 
is  created  between  the  parties  or  not.^^ 

The  estoppel,  precluding  a  denial  of  the  landlord's  title,  extends 

« Caldwell  v.  Smith,  77  Ala.  157;  (Tenn.)    46;    Casey   v.   Haurick,   69 

Norwood    V.    Kirby,    70    Ala.    397;  Tex.  44,  6  S.  W.  405.    Contra,  Green 

Houston  V.  Farris,  71  Ala.  570.  v.    Dietrich,   114    111.    636,    3    N.    E. 

'  Washington  v.  Conrad,  2  Humph.  800. 

(Tenn.)   562.  "Reese  v.  Caffee,  133  Ind.  14,  32 

«Clemm  v.  Wilcox,  15  Ark.  102.  N.    E.    720;    Casey   v.    Haurick,    69 

» Goodenow  v.  Kilby,  24  Me.  425.  Tex.  44,  6  S.  W.  405. 

^"Reese  v.  Caffee,  133  Ind.  14,  32  '=  Sabastian  v.  Ford,  6  Dana  (Ky.) 

N.   E.   720;    Farmer  v.   Pickens,   83  436;  Winnard  v.  Robbins,  3  Humph. 

N.   Car.   549;    Dowd  v.   Gilchrist,   1  (Tenn.)  614;  Baker  v.  Hale,  6  Baxt. 

Jones  L.  (N.  Car.)  353;  Love  v.  Ed-  (Tenn.)   46. 

monston,  1  Ired.  L.   (N.  Car.)    152;  "Burnett  v.  Rich,  45  Ga.  211,  per 

Winnard     v.     Robbins,     3     Humph.  McCay,  J. 
(Tenn.)  614;  Baker  v.  Hale,  6  Baxt. 

Jones  L.  &  T. — 51 


II 

§§■  683,  684]     ESTOPPEL  to  dext  landlord's  title.  802 

equally  to  landlord  and  tenant;  so  that  while  the  tenant  is  estopped 
from  denying  the  landlord's  title,  the  landlord  cannot  allege  that  he      ) 

had  no  title  at  the  time  of  the  demise.^*  ,^A 

§  683.  Where  a  lessee  has  had  full  benefit  of  his  term,  he  is  es- 
topped to  deny  the  capacity  or  power  of  the  lessor  to  execute  the  lease 
and  the  mode  in  which  he  executed  it.^^  In  such  a  case  the  lessee  has 
received  everything  that  he  bargained  for;  he  has  been  given  posses-  p 
sion  of  the  land  and  held  it  peaceably  until  after  the  expiration  of  the 
lease.  Having  received  air  the  benefits  of  his  contract,  he  cannot  be 
permitted  to  dispute  the  authority  of  the  one  leasing  him  the  land 
and  thereby  escape  paying  for  what  he  has  received.  The  lessee's  es-  i 
toppel  would  extend  to  a  surety  for  the  payment  of  rent.^''  It  may  be  I 
laid  down  as  a  general  rule  that,  besides  the  prohibition  against  deny- 
ing title,  a  tenant  is  precluded  from  controverting  the  authority  of  his 
landlord  to  execute  the  lease  under  which  he  holds  or  his  capacity  to 
sue  on  it.^^  In  the  absence  of  authority  derived  from  the  statute  or 
from  the  court  ordering  his  appointment,  a  receiver  has  no  authority 
to  sue  in  his  own  name ;  but  after  tenants  have  attorned  to  a  receiver, 
and  so  created  a  tenancy,  as  between  them,  the  receiver  may  distrain, 
in  his  own  name  for  rent  accrued  during  the  tenancy  without  first 
obtaining  an  order  so  to  do.^*  But  if  possession  of  the  property  is 
wrongfully  retained  by  the  tenant,  the  receiver  is  entitled  to  maintain 
an  action  to  recover  possession  in  his  own  name  without  an  order  of 
court.^^  In  a  similar  connection  it  has  been  declared  that  there  is 
nothing  peculiar  in  the  nature  of  municipal  corporations,  to  require, 
against  them,  any  modification  of  the  rule  which  prevents  the  tenant 
from  denying  his  landlord's  title.^° 

§  684.  To  allow  a  tenant  to  object  to  the  right  of  joint  lessors  to 
maintain  a  joint  action  to  recover  the  premises,  for  the  reason  tliat 
they  do  not  hold  the  premises  in  common,  but  are  seized  in  severalty 
of  separate  and  distinct  parcels  thereof,  and  cannot,  therefore,  jointly 

"Duke  v.  Harper,  6  Yerg.  (Tenn.)  "Helena  v.  Turner,  36  Ark.  577; 

279,  280.  Pouder  v.   Catterson,   127   Ind.   434, 

"Mayer  &c.  v.  Sonneborn,  113  N.  26   N.    E.   66;    Jamaica  v.   Hart,   52 

Y.  423,   21  N.   E.   121,   22   N.   Y.   St.  Vt.   549;    Hall  &c.  Co.  v.  Wilbur,  4 

988;      Cunning      v.      Tittabawassee  Wash.  644,  30  Pac.  665. 

Boom   Co.,   88   Mich.   237,   50  N.   W.  '« Pouder    v.    Catterson,    127    Ind. 

141;    Oliver   v.    Gary,    42    Kan.    623,  434,  26  N.  E.  66. 

22  Pac.  733.  ^»  Kehr  v.   Hall.   117   Ind.    405,   20 

^"Oliver  v.  Gary,  42  Kan.  623,  22  N.  E.  279. 

Pac.  733.  '"  Helena  v.  Turner,  36  Ark.  577. 


II 


803 


ESTOPPEL  TO  DENY  LANDLOKD's  TITLE.       [§§'  685,    686 


sue  to  recover  the  whole,  would  be  a  violation  of  the  elementary  prin- 
ciple that  a  tenant  cannot  deny  his  landlord's  title.  The  lease  is  a 
conclusive  admission  that  the  lessors  are  so  entitled  to  the  premises  de- 
manded, as  to  enable  them  to  sue  jointly  for  their  recovery.^^  Where 
a  tenant  enters  upon  land  under  license  from  one  of  several  tenants  in 
common,  all  his  subsequent  acts  must  be  considered  as  performed  in 
submission  to  that  title  till  the  contrary  is  proved.  ^^ 

§  685.  A  tenant  at  will,  equally  with  a  tenant  for  years  or  from 
year  to  year,  is  precluded  from  denying  his  landlord's  title  prior  to  a 
surrender  or  eviction  by  title  paramount.^^  And  this  has  been  applied 
where  the  landlord  was  in  turn  a  tenant  at  will  of  the  owner  in  fee. 
Until  the  owner  in  fee  took  steps  to  terminate  the  will,  the  sub-tenant 
would  be  bound  by  estoppel.^*  However,  it  has  been  held  that  a  tenant 
claiming  under  an  oral  lease  is  not  estopped  to  show  that  his  landlord 
is  only  a  tenant  at  will  and  that,  therefore,  a  subsequent  written  lease 
from  this  landlord  to  one  who  has  sued  the  tenant  for  use  and  occupa- 
tion as  a  tenant  at  sufferance  is  void.  It  is  not  inconsistent  with  the 
relations  of  a  tenant  to  his  landlord,  to  deny  the  right  of  the  landlord 
to  convey  to  another  a  greater  estate  than  that  which  the  tenant  him- 
self derived  from  his  lease.  Proof  that  his  landlord  had  not  such  a 
title  as  would  entitle  him  to  create  an  estate  for  years  was  not  in  de- 
nial of  a  title  sufficient  to  sustain  the  tenant's  estate  at  will.-^ 

§  686.  Occupation  under  a  void  or  improperly  executed  lease,  in- 
valid to  transfer  an  estate  for  years  to  the  lessee,  will  estop  him  from  de- 
nying the  landlord's  title  in  an  action  for  rent.^**  This  rule  is  applica- 
ble in  actions  to  recover  possession  and  in  ejectment  by  a  landlord 
against  a  tenant,  the  latter  cannot  object  to  an  informality  in  the  lease 
under  which  he  holds.^^  The  doctrine  of  estoppel  applies  with  equal 
force  though  the  lease  under  which  the  tenant  went  into  possession  is 
void  because  not  put  in  writing  as  required  by  the  statute  of  frauds.-^ 


■^  Oakes  v.  Munroe,  8  Cush. 
(Mass.)   282. 

"  Bucknam  v.  Bucknam,  30  Me. 
494. 

-^  Towne  v.  Butterfleld,  97  Mass. 
105;  Coburn  v.  Palmer,  8  Cush. 
(Mass.)   124. 

-*  Coburn  v.  Palmer,  8  Cush. 
(Mass.)  124. 


-^  Palmer  v.  Bowker,  106  Mass. 
317;   Hilbourn  v.  Fogg,  99  Mass.  11. 

-»Cobb  V.  Arnold,  8  Mete.  (Mass.) 
398;    Moore  v.  Beasley,  3  Ohio  294. 

"  Trustees  &c.  v.  Burt.  11  Vt.  632. 

='Cobb  V.  Arnold,  12  Met(!. 
(Mass.)  39;  Smalley  v.  Mitchell,  110 
Mich.  650,  68  N.  W.  978;  Adams  v. 
Martin,  8  Grat.    (Va.)    107. 


§§'  687,  688]     ESTOPPEL  to  deny  landlord's  title.  804 

Or  there  has  been  no  express  contract  of  tenancy,  and  the  a^eement 
is  implied  from  the  conduct  of  the  parties.^ ^ 

§  687.  A  disability  to  contract  of  one  who  enters  upon  land  by  per- 
mission of  another  does  not  relieve  him  from  the  obligation  of  return- 
ing the  possession  to  such  owner  as  a  condition  precedent  to  denying 
his  title.  The  doctrine  of  estoppel,  as  applied  between  landlord  and 
tenant,  does  not  arise  so  conclusively  out  of  a  contract  that  it  cannot 
be  applied  to  one  who  is  incapable  of  binding  himself  by  a  contract. 
If  one  enter  upon  land  by  permission  of  another,  claiming  and  ac- 
knowledged to  be  the  owner,  the  duty  to  return  the  possession  to  the 
owner,  as  a  condition  precedent  to  denying  his  title,  is  one  which  the 
law  imposes  upon  principles  of  good  faith  and  to  prevent  fraud.  Its 
violation  is  essentially  a  tort  and  a  fraud.  Because  a  tenant  could  not 
contract  while  a  slave,  is  no  reason  why  he  should  be  allowed  to  commit 
a  fraud  after  he  is  free.^**  But  the  inability  of  a  married  woman  to 
lease  real  estate  belonging  to  her  sole  and  separate  estate,  has  been 
held  to  release  her  lessee  from  his  estoppel  to  deny  her  title.  The  les- 
see cannot  be  estopped  to  deny  the  lease  unless  the  lessor  would  also  be 
estopped ;  for  estoppels  are  mutual.  There  is  no  way  of  escaping  the 
conclusion  that  such  a  lease  is  void,  because  of  the  well-recognized 
doctrine  that  a  married  woman  is  never  estopped  except  in  the  case  of 
fraud  on  her  part.^^  It  has  been  declared  to  be  a  fundamental  rule  of 
estoppel  that  it  must  be  mutual ;  if  one  party  is  not  bound  neither  is. 
So,  if  at  the  time  a  lease  was  made  one  landlord  was  a  married  woman 
and  the  other  was  insane,  they  were  not  bound  by  the  estoppel  and 
therefore  their  lessees  were  not.^^ 

§  688.  A  tenant  cannot  deny  his  landlord's  title  while  remaining 
in  possession  after  the  expiration  of  his  term,  because  the  admission 
of  his  landlord's  title  must  necessarily  extend  during  the  whole  time 
that  he  remains  in  the  possession  first  acquired.^^  This  estoppel 
against  a  tenant  in  favor  of  his  landlord's  title  does  not,  however,  en- 

^''Towery   v.   Henderson,   60   Tex.  33  Pac.  729;   Mattis  v.  Robinson,  1 

291;    Word    v.    Drouthett,    44    Tex.  Neb.  3;  Grizzard  v.  Roberts,  110  Ga. 

365,  371.  41,  35  S.  E.  291;   Clemm  v.  Wilcox, 

"» Wilson  v.  James,  79  N.  Car.  349.  15   Ark.    102;    Falkner   v.    Beers,    2 

^' Schenck  v.  Stumpf,  6  Mo.  App.  Doug.     (Mich.)     117;     Kiernan     v. 

381.  Terry,    26    Ore.    494,    38    Pac.    671; 

'"Crocett  v.  Althouse,  35  Mo.  App.  Morse  v.  Goddard,  13  Mete.   (Mass.) 

404.  177,  46  Am.  Dec.  728. 

^  McKissick  v.  Ashby,  98  Cal.  422, 


805  ESTOrPEL  TO  DENY  LANDLORD'S  TITLE.  [§    689 

dure  longer  than  the  tenant's  possession  under  the  lease.  After  the 
possession  has  been  restored  to  the  landlord,  the  tenant  is  released 
from  the  estoppel,  and  if  he  has  a  paramount  title  he  may  bring  it 
forward.^*  After  the  expiration  of  the  term  and  surrender  of  pos- 
session, a  tenant  has  full  liberty  to  dispute  his  landlord's  title,  the 
general  rule  simply  requiring  that  while  the  tenant  holds,  by  permis- 
sion of  the  landlord,  he  shall  not  question  the  title  of  the  latter.^^  One 
or  two  eases  go  beyond  this  and  hold,  according  to  the  view  of  the 
New  Hampshire  court,  that  a  party  may  set  up  his  own  title  at  the 
expiration  of  his  term,  without  restoring  possession,  upon  the  plain 
and  sensible  ground  that  it  would  be  idle  to  compel  a  party  to  go  out 
of  possession,  when  he  could  turn  round  and  recover  it  back  on  the 
title.^*^  The  ancient  rule  laid  down  by  Lord  Coke  is  that,  "If  a  man 
take  a  lease  of  his  own  land  by  deed  indented,  the  estoppel  doth  not 
continue  after  the  term  ended.  For  by  the  making  of  the  lease  the 
estoppel  doth  grow,  and  consequently  by  the  end  of  the  lease  the  es- 
toppel determines."  Under  this  rule  the  estoppel  is  evidently  based 
on  the  indenture  and  not  on  the  possession  and  so  the  canon  is  mis- 
takenly applied  to  limit  the  modern  doctrine  arising  from  possession ; 
yet  such  an  application  was  undoubtedly  the  source  of  the  New  Hamp- 
shire doctrine  just  stated.  It  is,  however,  almost  idle  to  cite  author- 
ities, so  numerous  and  consistent  are  they,  that  the  estoppel  is  as  con- 
clusive after  as  during  the  term,  being  simply  concurrent  with  pos- 
session, not  with  title.  This  is  the  constant  definition,  and  has  been 
so  held  from  the  earliest  cases,  the  tenant  being  bound,  not  merely  not 
to  resist  the  landlord's  title,  but  to  restore  possession  to  him.^^ 

However  a  tenant  who  surrenders  possession  at  the  end  of  his  term 
or  from  whom  possession  is  recovered  is  not  concluded,  by  the  exist- 

'*  Wilson    v.    Cleaveland,    30    Cal.  100  E.  C.  L,  870;   Fuller  v.  Sweet, 

192;  Jackson  v.  Spear,  7  Wend.  (N.  30  Mich.  237. 

Y.)    401;    Glen   v.   Gibson,   9   Barb.         ="' Miller    v.    Lang,    99    Mass.    13; 

(N,  Y.)    634;    Doe  v.  Smythe,  4  M.  Bailey  v.  Kilburn,  10  Mete.  (Mass.) 

&  S.  348;   James  v.  Landon,  1  Cro.  176;    Phillips   v.    Rothwell,    4    Bibb 

36.  (Ky.)    33;    Shelton   v.    Doe,   6   Ala. 

'=  Zimmerman    v.    Marchland,    23  230;   Jackson  v.  Stiles,  1  Cow.    (N. 

Ind.  474;   Campbell  v.  Campbell,  21  Y.)     575;     Jackson     v.     Harper,     5 

Mich.  438;   Smart  v.  Smith,  2  Dev.  Wend.     (N.    Y.)     246;     Falkner    v. 

L.    (N.    Car.)    258;    Heath    v.    Wil-  Beers,    2    Doug.    (Mich.)    117;    Gal- 

liams,    25    Me.    209;     Carpenter    v.  loway  v.   Ogle,   2   Binn.    (Pa.)    468; 

Thompson,  3  N.  H.  204.  Willison  v.  Watkins,  3  Pet.   (U.  S.) 

'•'Page  v.  Kinsman,  43  N.  H.  328,  43,   48;    Doe   v.   Walker,    3    McLean 

citing    Accidental    &c.    Ins.    Co,    v.  (U.   S.)    431;    Doe  v.  Mills,  2   A.  & 

Mackenzie,    10    C.   B.    (N.    S.)    870,  E.   17;    Doe  v.   Smythe,  4  M.  &   S. 

348. 


§    689]  ESTOPPEL  TO  DENY  LANDLORD'S  TITLE.  806 

ence  of  such  tenancy  at  a  former  time  or  by  the  deed  of  lease,  which 
he  executed,  from  contesting  the  title  of  his  former  landlord.^^ 

If  the  tenant  desires  to  assert  title  in  himself  or  another,  he  must 
surrender  possession  of  the  premises,  and  give  his  landlord  the  ad- 
vantage of  possession  in  any  litigation  as  to  title.  Mere  leaving  pos- 
session and  resuming  it  a  short  time  afterward,  without  notice  to  the 
landlord,  or  giving  him  an  opportunity  to  take  possession,  is  not  suffi- 
cient. The  tenant  must  act  in  good  faith  and  restore  the  landlord  to 
the  same  condition  in  which  he  was  when  he  accepted  possession  from 
him.^^  A  temporary  absence  of  the  lessee,  of  which  the  lessor  has  no 
knowledge,  does  not  constitute  a  restoration  of  possession,  and  conse- 
quently gives  the  lessee  no  right,  upon  his  return,  to  resist  his  land- 
lord by  setting  up  an  adverse  claim  of  title.^°  Furthermore  it  is  not 
open  to  the  tenant  to  say  for  the  purpose  of  supporting  a  denial  that  to 
return  the  premises  would  be  to  commit  a  breach  of  public  policy  by 
impeding  navigation  in  a  river.'*^ 

Cancellation  of  the  instrument"  of  demise  would  not  terminate  an 
estoppel  resting  on  possession  and  a  decision  that  the  tender  of  a  lease 
without  surrender  of  possession  does  not  entitle  a  tenant  to  dispute 
his  landlord's  title  assumes  possession  to  be  the  basis  of  the  estoppel. *- 

§  689.  Purchase  of  adverse  title  by  tenant. — The  general  doctrine 
of  estoppel  precludes  a  tenant  during  the  continuance  of  his  posses- 
sion under  a  lease  from  buying  in  and  setting  up  an  adverse  title  to 
defeat  an  action  of  ejectment  or  a  suit  for  rent.*^  This  rule  does  not, 
however,  prohibit  the  tenant,  during  the  tenancy,  from  purchasing 
any  outstanding  title  and  from  asserting  the  same  against  the  land- 
lord after  the  expiration  of  the  tenancy  and  yielding  up  of  possession. 
There  are  fiduciary  relations  where  one  may  not  purchase  and  hold 
for  himself  an  adverse  interest,  but  the  title  if  acquired  will  inure  to 

^8  Smith   v.    Mundy,   18   Ala.    182;  "St.    Anthony    Falls    &c.    Co.    v. 

Gable  v.  Wetherholt,  116  111.  313,  6  Morrison,  12  Minn.  249. 

N.  B.  453;  Wild  v.  Serpell,  10  Grat.  '- Mackin  v.   Haven,   187   111.   480, 

(Va.)   405.  58  N.  E.  448,  affirming  88  111.  App. 

'"  Littleton    v.    Clayton,    77    Ala.  434. 

571;    Longfellow  v.   Longfellow,   61  *' Lyles   v.    Murphy,    38    Tex.    75; 

Me.  590;   Graham  v.  Moore,  4  S.  &  Casey  v,  Hanrick,  69  Tex.  44,  6  S. 

R.    (Pa.)    467;    Boyer   v.    Smith,    3  W.  405;  Chambers  v.  Pleak,  6  Dana 

Watts  (Pa.)   449;   Bertram  v.  Cook,  (Ky.)   426;   Norton  v.  Doe,  1  Dana 

32  Mich.  518.  (Ky.)     14;     Parker    v.    Nanson,    12 

*ojuneman   v.    Franklin,    67    Tex.  Neb.  419,  11  N.  W.  865;  Bertram  v. 

411,  3  S.  W.  562.  Cook,     32     Mich.     518;     Cooper     v. 

Smith,  8  Watts   (Pa.)   536. 


807 


ESTOPPEL  TO  DENY  LANDLORD'S  TITLE. 


[§  689 


the  benefit  of  the  person  towards  whom  he  holds  the  confidential  re- 
lations. Ordinarily  a  tenant  does  not  occupy  such  a  relation  to  his 
landlord  and  may  purchase  an  adverse  title,  and  assert  it  against  his 
former  landlord  after  having  surrendered  possession  to  him.**  As 
long  as  the  tenant's  possession  continues,  however,  he  cannot  be  heard 
in  any  court  to  ask  absolution  from  his  duties  as  tenant  because  of 
his  outstanding  title.*=  The  same  doctrine  has  been  applied  where 
the  tenant  received  his  adverse  title  by  devise/^  the  general  rule  being 
that  a  tenant  acquiring  rights  adverse  to  his  landlord,  is  bound  to  sur- 
render the  property  before  he  can  be  allowed  to  assert  them.*^ 

The  established  doctrine  is  that  a  tenant  for  life  in  possession,  in 
the  purchase  of  an  incumbrance  upon,  or  an  adverse  title  to  the 
estate,  will  be  regarded  as  having  made  the  purchase  for  the  joint  bene- 
fit of  himself  and  the  reversioner  or  remainderman.  The  law  will 
not  permit  him  to  hold  it  for  his  own  exclusive  benefit  if  the  re- 
versioner or  remainderman  will  contribute  his  share  of  the  sum  paid. 
If  the  life  tenant  in  such  case  pays  more  than  his  proportionate  share, 
he  simply  becomes  a  creditor  of  the  estate  for  that  amount.*^  In 
Xebraska  a  similar  doctrine  has  been  applied  in  the  case  of  a  term  for 
years,  so  that  in  that  state,  if  a  tenant  for  years  in  possession  pur- 
chases an  incumbrance  on  the  leased  premises,  the  presumption  is,  that 
he  did  it,  for  the  only  purpose  permitted  by  law,  that  is,  to  protect 
his  possession,  and  in  such  case  where  the  tenancy  is  for  years,  the 
landlord  must  account  to  him  for  what  he  has  paid  for  the  incum- 


*^  Gable  v.  Wetherholt,  116  111. 
313,  6  N.  E.  453;  Hodgen  v.  Guttery, 
58  111.  431;  Brown  v.  Keller,  32 
111.  151;  Williams  v.  Garrison,  29 
Ga.  503;  Hodges  v.  Shields,  18  B. 
Mon.  (Ky.)  828;  Chambers  v.  Pleak, 
6  Dana  (Ky.)  426;  Higgins  v. 
Turner,  61  Mo.  249;  Rives  v.  Nes- 
mith,  64  Miss.  807,  2  So.  174. 

"  Brewer  v.  Keeler,  42  Ark.  289. 

«  Hatch  V.  Bullock,  57  N.  H.  15. 

"  Arnold  v.  Woodard,  4  Colo. 
249;  Milsap  v.  Stone,  2  Colo.  137; 
Williams  v.  Garrison,  29  Ga.  503; 
Longworth  v.  Wolfinger,  Wright 
(Ohio)  216;  Hughes  v.  Watt,  28 
Ark.  153.  Vermont  doctrine.  If 
the  tenant  has  entered  into  posses- 
sion under  the  mortgagor,  as  his 
tenant,  still  he  might  repudiate  that 


tenancy  by  purchasing  an  older 
mortgage  as  being  a  better  title  and 
protect  himself  in  his  position  of 
the  premises  from  any  claims  of 
his  former  landlord.  And  when- 
ever, by  purchasing  such  title,  he 
is  entitled  to  the  right  to  posses- 
sion, it  would  be  an  Idle  ceremony 
to  require  the  tenant  to  surrender 
up  the  possession  and  then  resort 
to  his  action  of  ejectment,  when  it 
is  only  effect  and  cannot  be  to  put 
the  lessee  in  the  same  position  as 
before.  Pierce  v.  Brown,  24  Vt. 
165,  citing  Doe  v.  Barton,  11  A. 
&  E.  307. 

*^  Daviess  v.  Myers,  13  B.  Mon. 
(Ky.)  511;  Whitney  v.  Salter,  36 
Minn.  103,  30  N.  W.  400. 


§    690]  ESTOPPEL  TO  DEXT  LAXDLOED's  TITLE.  808 

brance,  not  exceeding  what  was  Jointly  due  thereon  with  interest.** 
The  same  presumption  has  been  held  in  that  state  to  apply  to  a  pur- 
chase of  the  landlord's  title  at  judicial  sale.^° 

§  690.  An  owner  of  land  or  one  under  obligation  to  pay  taxes 
thereon,  cannot  acquire  a  tax  title  so  as  to  defeat  incumbrancers  or 

others  setting  up  a  claim  or  title  adverse  to  him.  This  rule  has  been 
extended  to  tenants  in  common  and  those  holding  under  the  owner  of 
the  property.^^  It  is  the  duty  of  a  tenant  for  life  to  pay  all  the  taxes 
assessed  during  his  tenancy,  and  if  he  neglects  it  and  suffers  the  land 
to  be  sold  for  the  taxes,  and  purchases  it  himself,  or  suffers  a  stranger 
to  purchase  and  then  procures  a  release  to  himself,  he  can  acquire  no 
right  to  the  estate  against  the  owner  in  fee.^^  It  is  a  general  rule 
from  which  there  is  no  dissent  that  where  a  tenant  is  under  obliga- 
tion to  pay  taxes  on  the  demised  premises,  he  cannot  acquire  title 
against  the  landlord  by  the  purchase  of  the  property  at  a  tax  sale.^^ 
Furthermore,  the  mere  relation  of  landlord  and  tenant  has  been  de- 
clared to  be  of  such  a  nature  as  to  disqualify  either  from  acquiring 
title  under  a  tax  deed.  Although  it  is  the  duty  of  the  landlord  to 
pay  the  taxes  assessed,  in  the  absence  of  any  agreement  to  the  con- 
trary between  the  parties,  yet  the  tenant  will  not  be  permitted  to  take 
advantage  of  the  omission  of  his  landlord  to  pay  taxes  to  terminate 
the  relation  between  them  and  obtain  title  to  the  land.  The  pre- 
sumption of  law  in  such  case  is  that  a  tenant  who  takes  an  assignment 
of  a  certificate,  or  even  buys  at  a  tax  sale,  does  so  for  the  protection 
of  his  own  interest ;  the  result  would  be  that  every  attempted  purchase 
made  by  a  tenant  would  operate  merely  as  a  payment  of  the  tax,  and 
not  as  a  valid  purchase.^* 

According  to  the  doctrine  in  Arkansas,  where  land  becomes  for- 
feited to  the  state  for  non-payment  of  taxes  by  neglect  of  the  owner, 
his  tenant  may  terminate  the  tenancy  by  delivery  of  the  possession, 
or  protect  himself  from  eviction  by  a  future  purchaser  from  the  state 
by  advancing  the  taxes  and  holding  a  lien  for  reimbursement,  or  if 

^'Thrall   v.    Omaha    Hotel    Co.,    5  Y.)    312;   Burhans  v.  Van  Zandt,  7 

Neb.    295;     Mattis    v.    Robinson,    1  N.  Y.  523;  Trustees  &c.  v.  Dunn,  22 

Neb.  3.  Barb.    (N.   Y.)    402;    Prettyman    v. 

^oLausman  v.  Drahos,  10  Neb.  172,  Walston,  34  111.  175,  191. 

4  N.  W.  956.  "Duffitt  v.    Tuhan,  28   Kan.   292; 

"Curtis  v.  Smith,  42  Iowa  665.  Blake  v.  Howe,  1  Aik.  (Vt.)  306,  15 

"^Varney  v.  Stevens,  22  Me.  331;  Am.  Dec.  681. 

Hughes  v.  Young,  5  Gill  &  J.   (Md.)  =^  Bailey  v.  Campbell,  82  Ala.  342, 

67;  McMillan  v.  Robbins,  5  Ohio  28;  2  So.  646;  Curtis  v.  Smith,  42  Iowa 

Cairns  v.  Chabert,  3  Edw.  Ch.    (N.  665. 


1 


809  ESTOPPEL  TO  DENY  LANDLOED's  TITLE.  [§    691 

the  lands  are  sold  for  taxes  at  public  sale,  during  the  tenancy  with- 
out his  fault,  he  may  purchase  and  set  up  his  title  thus  acquired  against 
that  of  his  landlord.  Equity  will  regard  him  and  all  persons  holding 
under  him,  except  purchasers  without  notice,  as  trustees  for  the 
benefit  of  the  landlord,  and  will  not  permit  them  to  speculate  on  such 
a  purchase. ^^ 

In  Kansas  the  rule  is  that  a  tenant  under  no  duty  or  obligation  to 
pay  taxes  on  rented  land  may  purchase  the  land  at  tax  sale,  and  thus 
acquire  an  adverse  title  as  against  his  former  landlord,  which  enables 
him  to  resist  the  recovery  of  rent  accruing  after  the  tax  sale.^*^ 

The  same  doctrine  prevails  in  Missouri,  resting  on  the  analogy  to 
a  sale  of  the  landlord's  interest  on  execution.  If  a  tenant  purchases 
at  execution  sale,  he  then  becomes  vested  with  his  landlord's  title, 
not  a  hostile  or  adverse  title,  and  is  in  possession  in  his  own  right. 
The  case  is  the  same  when  applied  to  a  purchaser  at  a  tax  sale.  The 
tax  collector,  like  the  sheriff  in  an  execution,  is  the  agent  of  the 
debtor  to  sell  his  property  to  satisfy  a  charge  or  lien  existing  against 
it.  The  title  is  acquired  indirectly  and  by  operation  of  law,  but  it  is 
by  the  act  or  neglect  of  the  party  and  has  the  same  legal  effect  as  if  he 
had  made  a  private  conveyance.  In  such  a  sale  the  tenant  may  pur- 
chase equally  with  any  person,  and  the  title  that  he  acquires  is  the 
landlord's  title,  and  he  may  avail  himself  of  it  as  a  defense  even 
against  his  landlord  or  lessor.^'^ 

§  691.  The  rule  that  denies  to  a  tenant  the  right  to  dispute  his 
landlord's  title  cannot  be  so  extended  as  to  take  away  from  him  the 
right  to  prove  exactly  what  his  relationship  to  the  landlord  originally 
was.^^  The  tenant  may  deny  the  making,  or  the  validity,  of  the  con- 
tract by  which  the  tenancy  is  alleged  to  have  been  created.  He  may 
deny  his  sanity  at  the  time  the  lease  was  made,  and  show  that  it  is 
vitiated  by  fraud  on  the  part  of  the  lessor.^^  If  there  is  an  admitted 
tenancy,  it  is  the  duty  of  the  court  to  rule  out  evidence  in  denial  of  the 
landlord's  title,  the  validity  of  his  title  not  being  at  issue.  Whore 
the  evidence  is  offered  to  disprove  the  tenancy,  it  is  the  duty  of  the 
court  to  pass  upon  it  in  the  first  instance  to  determine  whether  it  has 

B^Waggener    v.     McLaughlin,     33  "« Smith  v.  Smith,  81  Tex.  45,  16 

Ark.  195.    But  see  Bettison  v.  Budd,  S.  W.  637;  Uhlig  v.  Garrison,  2  Dak. 

17  Ark.  546.  71,  77,  2  N.  W.  253;    Byrne  v.  Bee- 

="  Smith  V.  Newman,  62  Kan.  318,  son,  1  Doug.   (Mich.)   179. 

62  Pac.  1011;  Weichselbaum  v.  Cur-  ™  Byrne     v.      Beeson,      1      Doug, 

lett,  20  Kan.  709.  (Mich.)    179;   Wilborn  v.  Whitfield, 

"  Higgins  v.  Turner,  61  Mo.  249.  44  Ga.  51. 


§§  692,  693]     ESTOPPEL  to  dexy  landlord's  title.  810 

a  proper  bearing  on  that  issue,  while  the  weight  and  truth  of  testi- 
mony is  for  the  jury  under  proper  instructions  from  the  court.^" 

Once  the  existence  of  a  tenancy  is  admitted,  the  tenant  is  estopped 
from  disputing  the  landlord's  title,  but  to  dispute  the  existence  of 
such  tenancy  is  allowable,  and  the  tenant  may  deny  the  making  or 
validity  of  the  contract  by  which  such  tenancy  is  alleged  to  have  been 
created.®^  Such  was  the  case  where  there  was  a  statutory  prohibition 
against  leasing  the  lands  in  dispute.  The  tenants  denied  the  existence 
of  the  tenancy ;  there  could  be  no  valid  contract  creating  the  relation 
of  landlord  and  tenant  in  regard  to  that  land.^^  In  passing  upon  the 
admissibility  of  evidence  the  court  should  decide  whether  a  tenancy 
exists  rather  than  to  leave  the  decision  of  that  question  to  the  jury.®^ 

§  692.  The  estoppel  upon  a  tenant  only  extends  to  the  land  in- 
cluded in  the  lease.  Thus  a  lease  of  a  portion  of  a  tract  does  not  pre- 
clude the  lessee  from  setting  up  an  adverse  claim  to  another  part 
which  is  not  included  in  the  lease,  or  to  an  undivided  interest  in  the 
entire  tract.^*  If  a  tenant  takes  possession  under  color  of  title  of  land 
adjoining  the  leased  premises  and  belonging  to  the  landlord,  his  pos- 
session so  taken  is  adverse  and  will  ripen  into  a  fee.  A  landlord  who, 
by  a  lease,  has  restricted  the  possession  and  use  of  his  tenant  by  metes 
and  bounds,  to  a  part  of  a  larger  tract,  cannot  claim  that  his  tenant's 
possession  under  such  a  lease  extends  to  that  which,  by  the  terms  of  the 
lease,  the  tenant  has  no  right  to  possess.^^ 

§  693.  The  operation  of  the  general  rule  of  estoppel  is  not  affected 
by  the  fact  that  the  tenant  is  in  actual  possession  under  a  contract  of 
purchase,  at  the  time  he  accepts  the  lease.  By  such  act  he  effectually 
recognizes  the  title  and  possession  of  the  lessor.''^  From  the  applica- 
tion of  the  same  principle  it  follows  that  a  person  who  takes  a  lease 
from  another,  is  estopped  from  showing  that  such  person  was  but  a 
trustee  for  him.®'^ 

«"Wilborn  v.  Whitfield,  44  Ga.  51.  «'Pharis  v.  Jones,  122  Mo.  125,  26 

"Byrne      v.     Beeson,      1      Doug.  S.  W.  1032;   Read  v.  Allen,  63  Tex. 

(Mich)    179;    Uhlig  v.   Garrison,    2  154.     See   Texas   Land   Co.   v.   Wil- 

Dak.  71,  98,  2  N.  W.  253.  liams,  51  Tex.  51,  61. 

«^  Uhlig  V.  Garrison,  2  Dak.  71,  77,  «« Locke  v.   Frasher,   79   Va.   409; 

2  N.  W.  253.  Emerick  v.  Tavener,  9  Grat.   (Va.) 

«^Reed   v.   Todd,    1   Harr.    (Del.)  220;  Jordan  v.  Katz,  89  Va.  628,  16 

138.  S.   E.   866. 

«*  Brenner  V.  Bigelow,  8  Kan.  496;  "Lucas  v.   Brooks,   18   Wall.    (U. 

State  V.  Boyce,  109  N.  Car.  739,  14  S.)  436;  Jordan  v.  Katz,  89  Va.  628, 

S   E,  98_  16  S.  E.  866.     In  ejectment  by  land- 


1 

1 


811  ESTOPPEL  TO  DENY  LANDLORD'S  TITLE,  [§    G94 

Furthermore,  the  rule  that  a  tenant  is  estopped  to  deny  his  land- 
lord's title  applies  to  a  mortgagee  of  stock  who  becomes  the  tenant 
of  his  mortgagor's  landlord.  The  mortgagee  cannot  set  up  the  exist- 
ing lease  to  the  mortgagor  as  a  defense,  even  though  the  mortgagor 
had  not  assigned  or  surrendered  his  term.^® 

§  694.  The  parties  may  by  their  agreement  waive  the  rule  of  law 
that  a  tenant  cannot  deny  his  landlord's  title.  The  object  of  such  an 
agreement  would  be  that  the  question  of  title  should  be  tried,  but 
that  the  tenant  should  derive  no  benefit  from  the  possession;  on  the 
contrary,  that  the  landlord  should  have  all  the  advantages  arising 
from  actual  possession,  which  are  that  the  adverse  party  shall  be 
obliged  to  show  a  better  right.  The  agreement  reversed  the  usual 
course  of  proceedings  in  ejectment,  but  it  gave  the  tenant  full  right 
to  controvert  his  landlord's  title. ''^  But  if  the  landlord  sets  up  the 
claim  to  a  fee,  his  tenant  may  show  that  he  has  a  mere  possessory 
right.  Wliere  the  landlord  seeks  to  recover  the  possession  he  can  do 
so  under  the  lease,  but  if  he  goes  farther  and  claims  the  premises  in 
fee  the  tenant  is  not  estopped  from  denying  any  right  claimed  by  the 
plaintiff  greater  or  further  than  that  of  possession.  This  fully  pro- 
tects the  landlord,  who  regains  his  possession,  and  the  parties  are  then 
in  a  proper  position  to  litigate  the  title  should  they  desire  to  do  so.'^*' 

A  tenant  is  not  estopped  from  denying  his  landlord's  title  and 
setting  up  title  in  himself  adverse  to  the  landlord,  as  against  a 
stranger.  The  reason  upon  which  the  rule  of  a  tenant's  estoppel  de- 
pends is  manifestly  wanting,  when  a  stranger,  not  the  landlord  nor 
a  .privy  of  the  landlord,  seeks  to  set  it  up.  So  the  general  doctrine 
would  apply  that  a  stranger  cannot  set  up  an  estoppel,  for  estoppels 
must  be  mutual  and  can  operate  only  between  parties  and  privies.'^ 

A  lessee  who  has  never  gone  into  possession  under  his  lease  is  free 
to  deny  the  title  of  the  lessor.'^^  The  mere  fact  of  the  execution  of  a 
lease  by  a  person  would  not  create  an  estoppel  against  him.     That 

lord  against  tenant  the  latter  can-  '"Jochen  v.  Tibbells,  50  Mich.  33, 

not  defend  by  proof  that  the  plain-  14  N.  W.  690;   McKie  v.  Anderson, 

tiff   was  holding   the  title   in   trust  78  Tex.  207,  14  S.  W.  576. 

for  the  defendant.     Porter  v.  May-  "Cole  v.  Maxfield,  13  Minn.  235. 

lleld,  21  Pa.  St.  263.  "Wright  v.  Graves,   80  Ala.   416; 

*^  Goodman    v.    Jones,    26    Conn.  Andrews  v.  Woodcock,  14  Iowa  397; 

264;    Phipps  v.   Sculthorpe,   1  B.  &  Ireton  v.  Ireton,  59  Kan.  92,  52  Pac. 

Aid.  50.  74;   Trustees  of  Green  v.  Robinson, 

"''Mayor  &c.  v.  Bridge  Co.,  4  Binn.  Wright  (Ohio)  436. 
(Pa.)  283. 


695,  696]     ESTOPPEL  to. deny  landlord's  title.  812 


1 


would  arise  only  from  the  occupancy  of  the  premises  under  and  by 
virtue  of  the  lease.  In  order  that  a  lease  shall  operate  to  estop  a 
party  therein  named  as  lessee,  who  is  in  possession  of  the  land  therein 
described,  from  denying  the  title  of  the  lessor,  it  must  appear  that  he  - 
has  either  obtained,  or  retained,  possession  under  and  by  virtue  of  the  !■ 
lease.  If  controverted  the  fact  of  occupancy  under  the  lease  should 
be  submitted  to  the  jury.'^^ 

§  695.  After  the  expiration  of  his  lease,  a  tenant  may  disclaim  and 
disavow  his  tenancy  without  first  surrendering  possession  of  the  leased 
premises;  but  in  order  to  make  the  holding  adverse  there  must  be  a 
clear,  positive  and  continued  disclaimer  and  disavowal  of  the  land- 
lord's title  brought  home  to  him  by  distinct  notice.'^*  The  statute  of 
limitations,  in  the  case  of  an  adverse  possession  by  a  tenant,  runs  from 
the  time  the  landlord  receives  notice  that  the  occupancy  is  hostile; 
and  a  tenant  is  not  required  to  yield  possession  and  again  enter  the 
premises.'^ ^  But  while  the  term  continues  a  tenant's  possession  is 
not  adverse  to  the  title  of  the  lessor  unless  made  so  by  some  act  of 
disseisin  to  which  the  lessor  assents.  A  disclaimer  by  the  tenant  or 
his  attornment  to  a  stranger  during  the  continuance  of  the  term  will 
not  make  his  possession  adverse.'" 

§  696.  Some  overt  act  is  necessary  to  make  a  tenant's  holding  ad- 
verse and  his  silent  determination  to  hold  adversely  is  inefEectual  to 
accomplish  that  result  without  some  outward  change  of  possession.^'' 
Some  authorities  lay  doAvn  the  rule  that  the  tenant's  estoppel  con- 
tinues after  the  lease  expires,  until  he  has  surrendered  possession  or  j 
given  notice  that  he  does  not  intend  to  hold  in  subordination  to  the 

"  Ireton  v.  Ireton,  59  Kan.  92,  52  W.  Va.  236,  10  S.  E.  402,  s.  c.  38  W.  j 

Pac.  74.  Va.  607,  18  S.  E.  762;   Creekmur  v.  ' 

"  Wilkins  v.  Pensacola  City  Co.,  Creekmur,  75  Va.  430.  In  Georgia 
36  Fla.  36,  18  So.  20;  Whipple  v.  the  doctrine  seems  to  be  that  a  pos-  ' 
Earick,  93  Ky.  121,  19  S.  W.  237;  session  acquired  originally  through 
Holman  v.  Bonner,  63  Miss.  131;  a  tenancy  can  never  become  ad- 
Ross  v.  McManigal,  61  Neb.  90,  84  verse.  Dasher  v.  Ellis,  102  Ga.  830, 
N.  W.  610;  Messley  v.  Ladd,  29  Ore.  30  S.  E.  544. 

354,  45  Pac.  904;  De  Jarnette  v.  Mc-         "Greenwood    v.    Moore,    79    Miss. 

Daniel,    93    Ala.    215,    9     So.     570;  201,  30  So.  609. 

League  v.  Snyder,  5  Tex.  Civ.  App.         ''^  Sutton  v.  Casselleggi,  5  Mo.  App. 

13,  23  S.  W.  825;  Flanagan  v.  Pear-  111;   Flanagan  v.  Pearson,  61  Tex. 

son,  61  Tex.  302;  Stacy  v.  Bostwick,  302. 

48  Vt.  192;   Neff  v.  Ryman,  100  Va.         "  Hogsett  v.  Ellis,  17  Mich.  351. 
521,  42  S.  E.  314;   Voss  v.  King,  33 


813  ESTOPPEL  TO  DENY  LANDLORD'S  TITLE.  [§    G9G 

title  under  which  he  entered."®  But  courts  are  ready  to  assume  that 
open  and  notorious  acts  of  repudiation  are  brought  home  to  the  land- 
lord and  to  hold  the  tenant's  possession  adverse  on  proof  of  such 
facts.'^^  A  tenant  remaining  in  possession,  claiming  as  owner,  after 
his  lease  has  been  surrendered  by  mutual  consent,  becomes  an  ad- 
verse holder  in  respect  to  his  former  landlord.®*' 

The  question  whether  a  tenant  holds  possession  adversely  to  his 
former  landlord  is  in  every  instance  one  of  fact  dependent  upon  the 
accompanying  circumstances,  and  should  be  submitted  to  a  jury  for 
determination,®^  The  landlord's  knowledge  that  the  tenant  was  hold- 
ing adversely  need  not  be  proved  beyond  all  doubt.  Stronger  and 
clearer  proof  is  required  in  some  cases  than  in  others,  but  the  law  does 
not  in  civil  cases  require  proof  beyond  all  doubt,  or  all  reasonable 
doubt,  and  such  proof  is  not  required  in  a  case  like  this.®^  But 
declarations  of  the  tenant  to  members  of  the  landlord's  family  and  not 
coming  to  the  landlord's  knowledge  are  not  sufficient  notice  to  make 
the  holding  adverse.®^ 

A  tenant  cannot  by  merely  ceasing  to  pay  rent  to  his  lessor  and  pay- 
ing it  to  another  person,  change  the  tenancy  so  as  to  enable  himself 
to  dispute  the  title  of  his  landlord.®*  Mere  non-payment  and  non- 
demand  for  rent,  no  matter  how  long  continued,  are  insufficient  to  bar 
landlord's  title  whatever  effect  they  may  have  on  his  right  to  recover 
rent.®^  But  non-payment  of  rent  might  raise  a  presumption  that  there 
had  been  an  actual  ouster,  and  in  that  case  the  statute  of  limitations 
would  run.®® 

A  tenant  at  will  by  claiming  to  hold  in  his  own  right  and  apprising 
the  landlord  of  such  claim  may  so  far  throw  off  his  tenancy  as  to  com- 
mence a  possession  adverse  to  his  landlord.®^  In  the  absence  of  statute, 
a  tenant  at  will  may  terminate  his  tenancy  at  his  pleasure,  and  he 
may  then  hold  the  same  premises  adversely  to  his  former  landlord.®® 

'^Alderson   v.    Marshall,    7    Mont.  '^Reusens  v.  Lawson,  91  Va.  226, 

288,  16  Pac.  576;   Jackson  v.  Ayers,  21  S.  E.   347. 

14    Johns.    (N.    Y.)    224;    Towne   v.  ^^  Stacy  v.  Bostwick,  48  Vt.  192. 

Butterfield,  97  Mass.  105;    Willison  *•  Den  v.  Davis,  4  Dev.  &  B.    (N. 

V.  Watkins,  3  Pet.  (U.  S.)  43;  Lucas  Car.)   300. 

v.    Brooks,    18    Wall.    (U.    S.)    436;  ^^  Campbell  v.  Shipley,  41  Md.  81, 

Quinn  v.  Quinn,  27  Wis.  168.  96. 

"  Morton   v.    Lawson,    1    B.    Mon.  "'  Camp  v.  Camp,  5  Conn.  291,  303. 

(Ky.)  45.  «^Hall  v.  Dewey,  10  Vt.  593;  North 

^"Meridian  Land  &c.  Co.  v.  Ball,  v.  Barnum,  10  Vt.  220. 

68  Miss.  135,  8  So.  316.  ^  Hudson  v.  Wheeler,  34  Tex.  356. 

"  Lamme  v.  Dodson,  4  Mont.  560, 
2  Pac.  298. 


§    697]  ESTOPPEL  TO  DENY  LANDLORD'S  TITLE.  814 

§  697.  The  effect  of  a  possession  previous  to  the  acceptance  of  a  ■ 
lease  on  the  right  to  dispute  the  title  thus  acknowledged  has  been 
much  discussed  and  differently  ruled.  The  best  opinion  is  that  an  ^ 
anterior  possession  does  not  vary  the  application  of  the  rule;  on  " 
the  ground  that  although  the  party  asserting  the  estoppel  may  not  have 
lost  the  advantage  of  parting  with  possession  he  may  have  been  led  into 
some  omission  or  conduct  prejudicial  to  his  title  which  otherwise 
would  not  have  been.«»  It  is  a  well  established  general  rule  that  a 
lessee  is  estopped  from  denying  his  lessor's  title,  although  he  did  not 
obtain  possession  originally  from  such  lessor,  or  enter  under  such 
title.^"  Every  letting  and  every  acceptance  of  an  attornment  involves 
an  implied  if  not  an  express  undertaking  that  the  tenant  shall  peace- 
ably enjoy  the  premises  as  against  the  landlord ;  that  is  to  say,  that 
proceedings  for  the  assertion  of  the  hostile  title  shall  not  be  insti- 
tuted. This  undertaking  to  forbear  suit,  whether  express  or  implied, 
is  as  effectual  and  sufficient  a  consideration  for  the  promise  to  pay 
rent,  as  an  original  delivery  of  possession  would  be.  It  is  no  answer 
to  say  that  the  tenant  may  be  liable  to  one  landlord  by  virtue  of  an 
original  lease  and  to  another  by  virtue  of  a  subsequent  attornment; 
even  if  this  result  be  assumed  in  argument,  it  is  still  no  answer.  To 
avoid  the  assertion  of  a  hostile  title,  one  may  lawfully  contract  to  pay 
for  his  own ;  and  if  the  threatened  litigation  be  foreborne,  he  is  bound 
by  his  promise;  and  so  the  tenant  holding  under  a  lessor  where  title 
is  unimpeachable  may,  if  he  will,  undertake  to  pay  rent  to  every 
stranger  who  demands  it.  Such  demand  implies  the  threat  of  litiga- 
tion and  dispossession  if  the  demand  be  refused ;  and  if  made  in  good  i; 
faith,  and  without  fraud,  or  other  improper  practices  to  induce  con-  ^ 
cession,  and  if  the  tenant  yield  to  it,  with  full  knowledge  of  all  the 
facts,  it  is  difficult  to  see  why  he  should  not  be  bound  by  his  promise."^ 

The  doctrine  of  estoppel  applies  where  a  tenant  attorns  to  a  land- 
lord who  did  not  originally  let  him  into  possession.  It  is  immaterial 
how  he  first  went  into  possession  except  in  case  of  mistake  or  of 
fraud,  or  misrepresentation  on  the  part  of  the  landlord.^^     Where 

*"  Farmer   v.   Pickens,   83   N.   Car.  rence,  51  N.  Y.  219;  Hartzog  v.  Hub- 

549.  bard,  2  Dev.  &  B.  L.  (N.  Car.)   241; 

"*Lyon  V.  Washburn,  3  Colo.  201;  Thayer   v.    Society   &c.,    20    Pa.    St. 

Bowdish    V.    City    of    Dubuque,    38  60. 

Iowa  341;    McConnell  v.   Bowdry,  4  "Lyon  v.  Washburn,  3  Colo.  201. 

T.  B.  Mon.  (Ky.)  392,  400;  Saunders  «' Tyler    v.    Davis,    61    Tex.    674; 

V.   Moore,   14   Bush    (Ky.)    97;    Par-  Hamilton  v.  Pittock,  158  Pa.  St.  457, 

rott  V.   Hungelburger,  9   Mont.   523,  27  Atl.  1079;    Bodkin  v.  Arnold,  45 

24    Pac.    14;    Jackson    v.    Ayers,    14  W.  Va.  90,  30  S.  E.  154. 
Johns.   (N.  Y.)  224;   Prevot  v.  Law-                                                                             ,S 


815  ESTOPPEL  TO  DENY  LANDLORD'S  TITLE.  [§    698 

persons,  while  in  possession  of  land  not  as  tenants  to  any  one  and 
owing  no  allegiance  to  any  one  as  landlord,  took  leases  under  some  one 
claiming  title  and  held  under  him,  their  possession  from  thence- 
forward is  the  possession  of  the  landlord,  and  they  will  be  estopped  to 
deny  his  title.^^  Mere  payment  of  rent  has  been  regarded  as  per  se 
less  conclusive  than  express  attornment,  and  more  generally  open  to 
explanation,^*  and  so  has  a  mere  acknowledgment^^  or  ofEer  to  pay 
rent.®^ 

A  tenant  is  estopped  to  deny  his  landlord's  title  even  though  the 
execution  of  the  lease  was  obtained  by  the  landlord's  assertion  of  a 
title  in  himself  and  a  threat  to  evict  the  tenant  who  was  already  in 
possession.^^ 

The  tenant  is  allowed  to  contest  the  title  of  the  landlord,  when 
there  has  been  mistake  or  misrepresentation,  and  his  own  title  is 
good  at  least  quoad  the  one  he  seeks  to  dispute."^  Where  the  mistake 
was  clear  it  was  held  that  even  submitting  to  a  distress,^*^  an  express 
agreement^""  or  attornment,"^  or  even  receiving  a  lease,^**^  would 
not  create  an  estoppel.  But  if  no  mistake  exists,  the  estoppel  is  com- 
plete and  payment  of  rent  or  agreement  to  hold  under  the  lessor^°^  or 
submitting  to  a  distress^*'*  is  conclusive. 

§  698.     In  California  an  exception  to  the  general  rule  is  made  in 

case  the  tenant  did  not  enter  into  possession  under  the  landlord's 
title,  but  was  in  possession  at  the  time  he  took  the  lease.  According 
to  this  doctrine  the  bare  possession  of  the  tenant  at  the  time  the  lease 
is  given  is  sufficient  to  take  the  case  out  of  the  operation  of  the  general 
rule  without  there  being,  in  addition,  some  force,  fraud,  misrepre- 
sentation,  or  mistake   induced   by  the   landlord.     The   doctrine   of 

®'  Patterson    v.    Hansel,    4    Bush  ^°"  Ingraham  v.  Baldwin,  9   N.   Y. 

(Ky.)   654.  45. 

»^Shelton  v.  Carrol,  16  Ala.  148;  ">  Cornish   v.    Searell,   8   B.   &   C. 

Bergman  v.  Roberts,  61  Pa.  St.  497;  471. 

Doe  V.  Barton,  11  A.  &  E.  307;  Doe  '"=  Shultz    v.    Elliott,    11    Humph, 

v.  Francis,  2  Moo.  &  R.  57.  (Tenn.)    183. 

»^ Washington       v.       Conrad,       2  "''Miller    v.    Lang,    99    Mass.    13; 

Humph.     (Tenn.)     562;     Pearce    v.  Ingraham  v.   Baldwin,   9  N.  Y.  45; 

Nix,  34  Ala.  183.  Doe  v.  Wiggins,  4  A.  &  E.    (N.  S.) 

'« Stokes  V.  McKibbin,   13  Pa.  St.  367,  45  E.  C.  L.  365;  Hall  v.  Butler, 

267.  10  A.  &  E.  204. 

^  Harrisburg  School  Dist.  y.  Long  ^'^  Cooper   v.    Blandy,   2   Bing.    N. 

(Pa.),  10  Atl.  769.  C.    45;    Panton    v.    Jones,    3    Camp. 

'« Doe  V.  Brown,  7  A.  &  E.  447.  372. 

=°  Knight  V.  Cox,  18  C.  B.  645,  86 
E.  C.  L.  645. 


699] 


ESTOPPEL  TO  DEXT  LAXDLORD's  TITLE. 


«1 

816 


estoppel  is  designed  to  protect  the  landlord  in  his  actual  possession 
against  the  trickery  or  sharp  practice  of  the  tenant,  not  to  enable  him 
to  impose  upon  the  tenant.^"^  At  best,  the  landlord  gains  a  prima  facie 
case,  and  casts  upon  the  tenant  the  burden  of  overcoming  it,  for  he 
has  but  to  prove  the  lease  and  rest.^"^  Unless  the  tenant  overcomes 
this  presumption  by  showing  paramount  title  in  himself,  or  in  those 
under  whom  he  claims,  the  landlord  must  prevail.^*^^  The  law  in 
Michigan  is  similar  to  that  in  California  in  this  respect.^"^ 

§  699.  "The  relation  of  landlord  and  tenant  once  established  at- 
taches to  all  who  may  succeed  to  the  possession  through  or  under  the 
tenant,  whether  immediately  or  remotely,  the  succeeding  tenant  be- 
ing as  much  bound  by  the  acts  and  admissions  of  his  predecessor  as 
if  they  were  his  own."^°®  '  Thus,  the  estoppel  which  binds  a  tenant 


"^Tewksbury  v.  Magraff,  33  Cal. 
237;  Franklin  v.  Merida,  35  Cal. 
558,  566;  Baldwin  v.  Temple,  101 
Cal.  396,  35  Pac.  1008;  Davis  v.  Mc- 
Grew,  82  Cal.  135,  23  Pac.  41. 

loeperalta  v.  Ginochio,  47  Cal.  459; 
Franklin  v.  Merida,  35  Cal.  558, 
575. 

^°'  Holloway  v.  Galliac,  47  Cal.  474. 

i<^  Fuller  v.  Sweet,  30  Mich.  237. 
In  this  case  the  ratio  decidendi  is 
stated  as  follows:  "Where  a  person 
in  possession  agrees  by  parol  to  pay 
money  to  a  person  out  of  possession, 
and  who  has  no  title,  it  is  impos- 
sible to  find  any  sensible  ground  for 
sustaining  such  a  promise  which 
would  not  sustain  any  other  prom- 
ise without  consideration.  Where 
there  is  possession  given  there  is 
an  actual  consideration,  which  may 
render  it  also  reasonable  enough, 
under  ordinary  circumstances,  to  re- 
quire the  landlord  to  be  put  back 
in  statu  quo.  But  a  person  who 
never  had  or  gave  up  possession  to 
the  tenant,  is  left  in  statu  quo  by 
the  tenant's  remaining  in  posses- 
sion, and  in  reason  should  have  no 
further  claim.  If  he  has  it  must 
be  by  some  peculiar  and  anomalous 
rule,  for  which  we  have  found  no 


support.  Such  a  relation,  if  valid 
at  all,  must  rest  on  a  valid  contract, 
and  the  only  consideration  for  the 
contract  would  be  proof  of  title, 
not  covering  merely  the  period  of 
the  tenancy,  but  outlasting  it. 
When  that  is  proved  a  right  of  pos- 
session is  proved  with  it,  and  a 
further  holding  by  the  tenant  would 
be  wrongful,  and  subject  him  to 
eviction.  But  whether  it  could  be 
made  the  basis  of  an  implied  con- 
tract to  pay  rent  any  longer  is  a 
different  question.     .     .     . " 

^'^ Arkansas:  Earle  v.  Hale,  31 
Ark.  470.  Illinois:  Sexton  v.  Car- 
ley,  147  111.  269,  35  N.  E.  471.  Mis- 
souri: Stagg  V.  Eureka  &c.  Co.,  56 
Mo.  317;  Merchants'  Bank  &c.  v. 
Clavin,  60  Mo.  559.  North  Carolina: 
Doe  V.  Lachenour,  12  Ired.  L.  (N. 
Car.)  180;  Stewart  v.  Keener,  131 
N.  Car.  486,  42  S.  E.  935;  Den  v. 
Alexander,  4  Dev.  &  B.  (N.  Car.) 
40;  Conwell  v.  Mann,  100  N.  Car. 
234,  6  S.  E.  782.  New  Hampshire: 
Thorndike  v.  Norris,  24  N.  H.  454. 
Oregon:  Jones  v.  Dove,  7  Ore.  467. 
South  Carolina:  Milhouse  v.  Patrick, 
6  Rich.  L.  (S.  Car.)  350.  Tennessee: 
Washington  v.  Conrad,  2  Humph. 
(Tenn.)      562.       Texas:      Oury     v. 


817 


ESTOPPEL  TO  DENY  LANDLORD'S  TITLE, 


[§■   700 


against  denying  the  title  of  his  landlord  is  equally  binding  on  one 
to  whom  the  tenant  has  conveyed  the  premises  in  fee.^^°  A  mere 
licensee  from  a  tenant  is  bound  by  the  estoppel  not  to  deny  the  land- 
lord's title  because  he,  too,  comes  in  under  the  lease."^  The  purchaser 
of  a  leasehold  interest  in  land  at  judicial  sale  will  not  be  permitted 
to  dispute  the  title  of  the  landlord  under  whom  he  holds  the  estate.^^^ 
Knowledge  of  the  tenancy  by  those  succeeding  the  tenant  in  pos- 
session is  not  material,  provided  they  accept  possession  from  him. 
Under  a  possession  thus  acquired,  the  occupants  are  bound  by  all  the 
obligations  of  loyalty  to  the  title  resting  on  the  original  tenancy. ^^^ 
When  a  tenant  takes  advantage  of  his  position  to  turn  over  the  land 
occupied  by  him  to  the  holder  of  a  conflicting  title,  such  holder  will 
not  be  regarded  otherwise  than  as  an  intruder,  who  cannot  set  up  title 
under  a  third  person  or  in  himself  ta  defeat  an  action  of  ejectment.^" 

§  700.     That  the  estoppel  enures,  both  as  to  its  benefit  and  burden 
to  privies  in  law,^^^  in  blood,^^''  and  in  estate"^  is  a  rule  as  applicable 


Saunders,  77  Tex.  278,  13  S.  W.  1030. 
Vermont:  Reed  v.  Shepley,  6  Vt. 
602;  Greeno  v.  Munson,  9  Vt.  37; 
Derrick  v.  Luddy,  64  Vt.  462,  24  Atl. 
1050.  Virginia:  Emerick  v.  Tav- 
ener,  9  Grat.  (Va.)  220;  NefE  v. 
Ryman,  100  Va.  521,  42  S.  E.  314; 
Allen  v.  Paul,  24  Grat.  (Va.)  332. 
West  Virginia:  Allen  v.  Bartlett,  20 
W.  Va.  46;  Genin  v.  Ingersoll,  2  W. 
Va.  558.  United  States:  Blight  v. 
Rochester,  7  Wheat.  535,  547. 

""Emerick  v.  Tavener,  9  Grat. 
(Va.)  220. 

"^  Doe  v.  Lachenour,  12  Ired.  L. 
(N.  Car.)  180.  A  party  residing 
with  tenant  and  helping  to  pay  the 
rent,  thereby  admits  landlord's 
title,  and  can  acquire  no  right 
against  the  landlord  by  adverse  pos- 
session. Hodgkin  v.  McVeigh,  86 
Va.  751,  10  S.  E.  1065. 

"^Hentiz  v.  Pipher,  58  Kan.  788, 
51  Pac.  229. 

"^Reed  v.  Shepley,  6  Vt.  602; 
Greeno  v.  Munson,  9  Vt.  37. 

"*  Kepley  v.  Scully,  185  111.  52,  57 
N.  E.  187;  Hardin  v.  Forsythe,  99 
Jones  L.  &  T.— 52 


111.  312;   Anderson  v.  Gray,  134  111. 

550,  25  N.  E.  843;  Swift  v.  Gage,  26 
Vt.  224.  An  adverse  claimant  of 
land  cannot  collusively  with  the 
tenant  obtain  possession  to  the 
prejudice  of  the  title  of  the-  land- 
lord when  he  goes  into  possession 
by  collusive  concert  with  the  ten- 
ant. He  at  once  becomes  identified 
with  him — shares  and  stands  in  his 
place,  and  he  cannot  resist  the  land- 
lord's title  where  the  tenant  can- 
not do  so.  As  he  goes  into  posses- 
sion with  and  under  the  tenant  he 
is  bound  by  the  allegiance  the  lessee 
owes  the  lessor,  and  he  cannot 
throw  it  off  at  his  will  and  pleas- 
ure.   Springs  v.  Schenck,  99  N.  Car. 

551,  6  S.  E.  405. 

""Parer  v.  Manning,  7  Term  R. 
533;  Doe  v.  Austin,  9  Bing.  41. 

""Blantire  v.  Whitaker,  11 
Humph.  (Tenn.)  313;  Den  v.  Mur- 
ray, 6  Ired.  L.  (N.  Car.)   62. 

"'Louer  v.  Hummel,  21  Pa.  St. 
450;  Hilbourn  v.  Fogg,  99  Mass.  11; 
Palmer  v.  Ekins,  2  Ld.  Raym.  1550; 
Russell  V.  AUard,  18  N.  H.  222. 


§    701]  ESTOPPEL  TO  DENY  LANDLORD'S  TITLE.  818 

to  this  species  of  estoppel  as  to  the  strict  estoppel  at  common  law. 
The  rule  seems  settled  that  a  tenant  can  no  more  dispute  the  title  of 
his  lessor  when  asserted  by  an  assignee  of  the  latter  than  when  it  is 
held  by  the  lessor  himself.  But  the  tenant  may  show  that  the  title 
was  never  validly  transferred, ^^^  Not  only  are  those  succeeding  to 
the  interest  of  the  tenant  placed  under  the  same  restriction  that  he  is 
under,  but  all  those  who  succeed  to  the  interest  of  the  original  land- 
lord are  entitled  to  the  same  benefits  which  such  landlord  could  claim. 
So  it  may  be  stated  as  a  general  rule  that  a  tenant  is  estopped  to  deny 
the  title  of  his  landlord's  assignee  to  the  same  extent  that  he  is  pre- 
cluded from  controverting  the  title  of  the  landlord  himself.^^^  An 
assignee  of  a  leasehold  would  have  the  same  immunity  against  a  sub- 
lessee in  regard  to  his  title  as  would  the  original  lessee  who  granted 
the  sub-lease. ^2"  The  tenant  may,  however,  attack  the  validity  of  a 
transfer  made  by  the  landlord,  and  his  right  to  do  so  continues  even 
though  he  has  paid  rent  to  such  third  party  under  a  misapprehension 
as  to  the  title.  "^ 

The  rule  that  a  tenant  cannot  dispute  his  landlord's  title  may  be 
invoked  by  an  administrator  of  a  deceased  landlord  upon  a  proper  case 
for  an  administrator  to  maintain  a  suit  in  respect  to  the  land.^^^ 
A  tenant's  allegiance  to  his  landlord's  title  continues  although  the 
landlord  dies  and  the  property  descends  to  heirs  who  are  unknown  to 
the  tenant.^^^ 

§  701.  The  burden  is  on  the  tenant,  in  an  action  for  the  rent  or  to 
recover  possession  of  the  premises  to  establish  that  the  case  falls 
within  some  exception  of  the  general  rule  stated  that  he  would  avail 
himself  of  the  right  to  dispute  the  landlord's  title.^^*  A  landlord 
need  not  show  good  title  against  all  the  world  nor  need  he  give  any 

"^  Streeter  v.  Ilsley,  147  Mass.  141,  S.)    535,  547;    Den  v.  Alexander,  4 

16  N.  E.  776;  Glllett  v.  Mathews,  45  Dev.  &  B.   (N.  Car.)  40. 

Mo.    307;    Dunshee   v.    Grundy,    15  ""  Dunshee    v.    Grundy,    15    Gray 

Gray  (Mass.)  314;  Bergman  v.  Rob-  (Mass.)   314. 

erts,  61  Pa.  St.  497;  Louer  v.  Hum-  "*  De    Wolf   v.    Martin,    12    R.    I. 

mel,  21  Pa.  St.  450.  533. 

"^Streeter    v.    Ilsley,    147    Mass.  i=' State   v.   Votaw,   13   Mont.   403, 

141,    16    N.    E.    776;     Dunshee    v.  34  Pac.  315. 

Grundy,     15     Gray     (Mass.)     314;  *»  Fowler  v.  Simpson,  79  Tex.  611, 

Funk     v.     Kincaid,     5     Md.     404;  15  S.  W.  682. 

Palmer    v.     Melson,     76     Ga.     803;  ^Derrick  v.   Luddy,   64  Vt.   462, 

Thorndike  v.  Norris,  24  N.  H.  454;  24  Atl.  1050. 
Blight  V.  Rochester,  7  Wheat.    (U. 


1 


819  ESTOPPEL  TO  DENT  LANDLORD'S  TITLE.  [§    '<'01 

evidence  of  title  at  all,  the  only  proof  required  being  that  the  de- 
fendant entered  into  possession  as  his  tenant. ^^^ 

In  an  action  for  rent  it  is  sufficient  to  show  a  contract  with  the 
plaintiif  and  a  holding  under  him,  the  plaintifE's  title  and  right  of 
possession  are  immaterial  and  therefore  he  is  under  no  obligation  to 
prove  his  title.^^^  For  a  tenant  who  admits  the  execution  of  a  lease  to 
defend  an  action  for  rent,  it  is  necessary  for  him  to  allege  either  that 
he  had  not  entered  under  the  lease,  or  that  he  had  been  evicted  by  a 
paramount  title  or  that  possession  had  been  surrendered.  It  is  no 
defense  to  plead  that  the  plaintiff  fraudulently  alleged  that  he  was 
the  owner  and  thereby  induced  the  defendant  to  accept  a  lease;  and 
that  thereafter  the  defendant  had  attorned  and  paid  rent  to  the  true 
owner.^-^ 

Where  plaintiff  in  an  action  of  forcible  detainer  pleads  a  written 
lease  by  the  terms  of  which  defendant  was  to  surrender  possession 
at  the  expiration  of  the  term,  he  is  not  required  to  plead  title  and  in 
such  case  no  issue  involving  title  to  the  property  can  arise. ^^^  And 
if  a  lessee  holds  over  after  the  expiration  of  his  term  and  the  land- 
lord brings  ejectment  against  him,  the  landlord  need  produce  no 
evidence  of  title  except  the  lease  by  which  the  term  was  created.^^a 
In  any  action  by  a  landlord  against  his  tenant  to  recover  possession, 
it  is  immaterial  whether  he  had  any  title  at  the  time  the  contract  of 
lease  was  made.^^** 

The  nature  of  the  interest  covered  by  a  demise  does  not  affect  the 
rule  as  to  estoppel  to  deny  title,  provided  only  that  the  subject-matter 
was  an  interest  in  real  estate.  Thus  the  general  rule  has  been  ap- 
plied in  the  case  of  a  lease  of  a  party  wall,^^^  and  where  the  locus 
was  a  building  which  stood  on  rented  land.^^^    However,  it  has  been 

^^  Cressler   v.   Williams,    80    Ind.  ""  South  v.  Marcum,  15  Ky.  L.  R. 

366.  339. 

i=«Bartlett   v.    Robinson,   52    Neb.  *"  Mackin  v.  Haven,  187   111.   480, 

715,  72   N.  W.  1053;    Voss  v.  King,  58  N.  E.  448,  affirming  88  111.  App. 

33  W.  Va.  236,  10  S.  E.  402,  s.  c.  38  434. 

W.  Va.  607,  18  S.  E.  762.  "^Pool  v.  Lamb,  128  N.  Car.  1,  37 

i^^Nissen  v.  Turner,  50  Neb.  272,  S.  E.  953.  Where  the  boundary  be- 
69  N.  W.  778;  Mosher  v.  Cole,  50  tween  two  farms  was  disputed  an 
Neb.  636,  70  N.  W.  275;  Fordyce  v.  agreement  fixing  a  temporary  boun- 
Young,  39  Ark.  135;  Reynolds  v.  dary  was  held  not  to  create  a  ten- 
Lewis,  59  Cal.  20.  ancy    between    the    owner    on    one 

"'Browne   v.    Haseltine,    9    S.    D.  side   who    occupied    land    to    which 

524,  70  N.  W.  648.  he  had  good  title.     It  was  a  mere 

"'Mattox  V.  Helm,  5  Litt.    (Ky.)  license  to  occupy,  and  no   estoppel 

185.  resulted.    Bishop  v.  Babcock,  22  Vt. 

295. 


703] 


ESTOPPEL  TO  DENT  LANDLORD  S  TITLE. 


820 


held  that  one  who  usurps  the  right  to  keep  a  public  ferry,  in  violation 
of  local  statutes,  cannot  claim  the  allegiance  from  his  lessee  which  is 
due  from  a  tenant  to  his  landlord.  Another  clear  ground  upon  which 
to  rest  such  a  decision  is  that  one  who  usurps  a  franchise,  and  makes 
contracts  based  on  it,  cannot  be  allowed  to  enforce  such  contracts  in 
the  courts  of  the  country  on  grounds  of  public  policy.^^^ 

§  702.  Where  the  tenant  has  been  induced  to  accept  the  lease  by 
misrepresentation,  fraud  or  trick  practiced  upon  him  by  the  lessor,  he 
is  not  estopped  from  setting  up  a  superior  title  to  that  of  the  lessor. 
It  matters  not  whether  the  deception  practiced  originated  in  volun- 
tary falsehood  or  in  simple  mistake,  for  the  immunity  it  confers 
springs  not  so  much  from  the  fraud  of  the  usurper,  as  from  the 
wrong  which  the  deception  would  otherwise  work  on  the  rights  of  the 
lessee.^^*  For  a  party  in  possession  of  land  to  accept  a  lease  from  a 
stranger  in  ignorance  of  his  rights,  or  in  entire  ignorance  of  its  pur- 
port and  effect,  does  not  preclude  him  from  impeaching  the  validity 
of  the  stranger's  title.^^^  "The  exception  is  as  well  established  as  the 
rule  itself  that  where  the  tenant  is  induced  to  accept  the  lease  by  the 
employment  of  trick,  the  suggestion  of  falsehood  or  the  use  of  undue 
promises  or  threats,  such  acceptance  will  not  close  his  mouth  against 
the  assertion  of  a  title  superior  to  that  residing  in  the  lessor.  This 
is  so  even  though  at  the  time  of  acceptance  the  lessee  be  not  in  the 
occupancy  of  the  demised  premises.  But  the  exception  is  more 
stringently  applicable  where  he,  who  is  improperly  prevailed  on  to 
attorn  as  tenant,  is  in  peaceable  occupancy  of  the  land."^^*' 


"^Milton  v.  Haden,  32  Ala.  30. 

^^Mays  v.  Dwight,  82  Pa.  St.  462; 
Baskin  v.  Seechrist,  6  Pa.  St.  154. 

i'=Cain  v.  Gimon,  36  Ala.  168; 
Wiggin  V.  Wiggin,  58  N.  H.  235. 

"'Baskin  v.  Seechrist,  6  Pa.  St. 
154.  Same  principle  affirmed  in 
Robins  v.  Kitchen,  8  Watts  (Pa.) 
390;  Hockenbury  v.  Snyder,  2  W. 
&  S.  (Pa.)  240;  Gleim  v.  Rise,  6 
Watts  (Pa.)  44;  Thayer  v.  Society 
&c.,  20  Pa.  St.  60;  Mays  v.  Dwight, 
82  Pa.  St.  462.  Alabama:  Blanken- 
ship  V.  Blackwell,  124  Ala.  355,  27 
So.  551;  Farris  v.  Houston,  74  Ala. 
162.  California:  Pacific  &c.  Ins.  Co. 
V.  Stroup,  63  Cal,  150,  153;  Knowles 
V.  Murphy,  107X:al.  107,  40  Pac.  111. 


Illinois:  Young  v.  Heffernan,  67  111. 
App.  354.  Maine:  People's  Loan  &c. 
Asso.  v.  Whitmore,  75  Me.  117. 
Michigan:  Michigan  &c.  R.  v.  Bul- 
lard,  120  Mich.  416,  79  N.  W.  635. 
Missouri:  Higgins  v.  Turner,  61  Mo. 
249;  Suddarth  v.  Robertson,  118  Mo. 
286,  24  S.  W.  151.  New  Hampshire: 
Wiggin  V.  Wiggin,  58  N.  H.  235. 
South  Carolina:  Givens  v.  Mullinax, 
4  Rich.  L.  (S.  Car.)  590.  Tennessee: 
Hammons  v.  McClure,  85  Tenn.  65, 
2  S.  W.  37.  Texas:  Hammers  v. 
Haurick,  69  Tex.  412,  7  S.  W.  345. 
Vermont:  Swift  v.  Dean,  11  Vt.  323. 
Virginia:  Alderson  v.  Miller.  15 
Grat.  (Va.)  279;  Locke  v.  Frasher. 
79  Va.  409.    West  Virginia:   Bodkin 


821  ESTOPPEL  TO  DEXY  LAXDLORD's  TITLE.  [§    702 

The  distinction  has  been  made,  however,  that  a  person  in  possession, 
accepting  a  lease  from  an  outstanding  title,  may  show  that  his  acknowl- 
edgment of  such  title  was  induced  by  imposition  or  fraud,  without  sur- 
rendering possession;  but  that  a  party  entering  into  possession  under 
a  lease,  cannot  dispute  the  validity  of  his  landlord's  title,  even  where 
the  lease  was  induced  by  fraud,  without  first  surrendering  the  posses- 
sion obtained  under  the  lease/^^  Yet  even  where  the  tenant  went 
into  possession  under  the  lease,  if  there  be  fraud  on  the  part  of  the 
landlord  in  the  execution  of  the  lease,  and  he  is  unable  by  reason  of 
insolvency  to  indemnify  the  tenant  for  rents  wrongfully  exacted,  the 
tenant  may,  while  in  possession,  purchase  a  superior  title  if  he  does 
so  in  good  faith,  from  a  well-grounded  fear  of  eviction,  and  may 
rely  on  the  title  thus  acquired  in  resisting  a  suit  by  the  landlord  for 
possession.^^^  And  where  a  lessee  goes  into  the  occupation  of  land 
under  a  lease,  it  is  nowhere  disputed  that  he  may,  in  case  of  fraud, 
misrepresentation,  or  mistake,  surrender  possession  and  relieve  him- 
self of  the  estoppel.^^" 

Where  a  tenant  himself  participates  in  the  fraud,  he  has  no  right 
to  dispute  his  landlord's  title  on  the  ground  that  it  was  fraudulent."** 
The  nature  of  the  defect  in  the  landlord's  title  is  immaterial  on  the 
question  of  estoppel.  In  order  to  discharge  a  tenant  from  the 
estoppel  which  ordinarily  arises,  it  is  necessary  not  only  that  a  false 
representation  of  ownership  be  made  by  the  landlord,  but  that  it  was 
made  for  the  purpose  of  inducing  the  tenant  to  accept  the  lease,  and 
did  in  fact  induce  him  to  accept  it.^*^ 

But  fraudulent  representations  of  a  landlord  inducing  tenant  to 

pay  rent  have  been  held  not  to  remove  the  estoppel  where  tenant  does 

not  surrender  possession  of  the  premises  as  soon  as  he  discovers  the 
fraud.  "2 

v.  Arnold,  45  W.  Va.  90,  30  S.  E.  154.  Y.)    401;    Crockett   v.   Althouse,   35 

Owner  of  land  conveyed  it  and  took  Mo.  App.  404. 

a  lease  back  from  the  grantee.     He  "'Gallagher   v.    Bennett,    38   Tex. 

subsequently    attempted    to    attack  291. 

the   validity   of   the   conveyance   as  ""  Crockett    v.    Althouse,    35    Mo. 

obtained    under    duress.      Held    he  App.  404. 

could  not  do  so  without  first  show-  ""  Tufts  v.  Du  Bignon,  61  Ga.  322, 

ing  the  invalidity  of  the  lease.   Wil-  328;  Gleaton  v.  Gleaton,  37  Ga.  650. 

liams  V.  Wait,  2  S.  D.  210,  49  N.  W.  "^  Camarillo    v.    Penlon,    49    Cal. 

209.  202. 

"'Jackson  v.  Spear,  7  Wend.   (N.  ^^^Kiernan  v.  Terry,  26  Ore.  494, 

38  Pac.  671. 


703] 


ESTOPPEL  TO  DENT  LAN^DLOP.D  S  TITLE. 


822 


§  703.  Showing  transfer  or  expiration  of  landlord's  title. — Al- 
though a  tenant  cannot  dispute  or  gainsay  the  title  of  his  landlord 
so  long  as  it  remains  as  it  was  at  the  time  the  tenancy  commenced, 
and  no  fraud  has  been  practiced;  yet  it  may  be  shown  that  the  title 
under  which  the  tenant  has  entered  has  expired  or  has  been  ex- 
tinguished by  operation  of  law.^*^  In  some  cases  it  has  been  insisted 
that  the  determination  of  the  lessor's  title  would  not  avail  the  lessee, 
unless  the  latter  had  attorned  to  the  new  owner.^**  But  this  require- 
ment which  seems  to  rest  on  a  misconception  of  the  real  ground  of  the 
defense,  has  not  been  insisted  upon;^'*^  and  it  nowhere  seems  to  be 
held  that  an  eviction  of  the  tenant  is  necessary  to  enable  him  to  show 
the  expiration  of  the  landlord's  title.^*^ 

The  tenant  may  also  show  that,  since  the  commencement  of  the 
tenancy,  he  has  acquired  a  title  consistent  with  that  admitted  by  the 
demise.^*^    This  rule  applies  whether  the  action  be  for  the  recovery 


"'Arkansas:  Bettison  v.  Budd,  17 
Ark.  546.  Alabama:  Randolph  v. 
Carlton,  8  Ala.  606;  Hammond  v. 
Blue,  132  Ala.  337,  31  So.  357. 
Florida:  Robertson  v.  Biddell,  32 
Fla.  304,  13  So.  358;  Winn  v.  Strick- 
land, 34  Fla.  610,  16  So.  606.  Illi- 
nois: Corrigan  v.  Chicago,  144  111. 
537,  33  N.  E.  746;  Born  v.  Stafford, 
93  111.  App.  10.  Indiana:  Kenney  v. 
Doe,  8  Blackf.  (Ind.)  350;  Millikan 
V.  Davenport,  5  Ind.  App.  257,  31 
N.  E.  1122.  Iowa:  Stout  v.  Merrill, 
35  Iowa  47.  Kentucky:  Sabastian 
V.  Ford,  6  Dana  (Ky.)  436;  Casey 
v.  Gregory,  13  B.  Mon.  (Ky.)  505. 
Maine:  Ryder  v.  Mansell,  66  Me. 
167.  Maryland:  Presstman  v.  Sill- 
jacks,  52  Md.  647;  Keys  v.  Forrest, 
90  Md.  132,  45  Atl.  22.  Massachu- 
setts: Lamson  v.  Clarkson,  113 
Mass.  348.  Michigan:  McGufSe  v. 
Carter,  42  Mich.  497,  4  N.  W.  211; 
Sherman  v.  Spalding,  126  Mich.  561, 
85  N.  W.  1129.  Mississippi:  Rhyne 
V.  Guevara.  67  Miss.  139,  6  So.  736. 
Missouri:  Cook  v.  Basom,  164  Mo. 
594,  65  S.  W.  227;  Robinson  v. 
Troup  Min.  Co.,  55  Mo.  App.  662. 
New  Hampshire:    Russell  v.  Allard, 


18  N.  H.  222;  Page  v.  Kinsman,  43 
N.  H.  328.  New  Jersey:  Den  v.  Ash- 
more,  22  N.  J.  L.  261.  New  York: 
Jackson  v.  Rowland,  6  Wend.  666; 
Jackson  v.  Davis,  5  Cow.  123.  North 
Carolina:  Lancashire  v.  Mason,  75 
N.  Car.  455.  Ohio:  Devacht  v.  New- 
sam,  3  Ohio  57.  Oregon:  West 
Shore  Mills  Co.  v.  Edwards,  24  Ore. 
475,  33  Pac.  987.  Pennsylvania: 
Heckart  v.  MeKee,  5  Watts  (Pa.) 
385;  Newell  v.  Gibbs,  1  W.  &  S. 
(Pa.)  496.  English:  Mountnoy  v. 
Collier,  1  E.  &  B.  630,  72  E.  C.  L. 
630,  16  E.  L.  &  Eq.  232;  England  v. 
Slade,  4  Term  R.  682;  Doe  v.  Ed- 
wards, 5  B.  &  Ad.  1065. 

"*Holt  V.  Martin,  51  Pa.  St.  499; 
Evertsen  v.  Sawyer,  2  Wend.  (N. 
Y.)   507. 

"'Simers  v.  Saltus,  3  Denio  (N. 
Y.)  214;  Whalin  v.  White,  25  N.  Y. 
462. 

"^Binney  v.  Chapman,  5  Pick. 
(Mass.)  124;  Jackson  v.  Davis,  5 
Cow.  (N.  Y.)  123;  Den  v.  Ashmore, 
22  N.  J.  L.  261;  Clarke  v.  Byne,  13 
Ves.  383;  England  v.  Slade,  4  Term 
R.  682. 

"^Millikan   v.    Davenport,   5    Ind. 


823  ESTOPPEL  TO  DENY  LANDLORD'S  TITLE.  [§'   703 

of  the  premises,  or  for  rent  accrued  after  the  extinguishment  of  the 
landlord's  title.  Thus,  a  tenant  may  show  that  his  landlord  had  a 
limited  estate  only  which  expired  by  its  own  limitation  before  the 
cause  of  action  accrued,  as  where  he  held  an  estate  for  the  life  of  an- 
other, who  has  died  during  the  term  ;'^^^  or  that  the  landlord  had  sold 
or  conveyed  the  land,  or  had  been  evicted  by  title  paramount,  or  that 
his  title  had  been  sold  under  execution  and  conveyed.^'*^  Thus  it  is 
open  to  the  tenant  to  show  that  the  landlord's  interest  has  been  sold  at 
a  tax  or  execution  sale,^^''  or  that  a  mortgage  executed  by  the  landlord 
prior  to  the  lease  has  been  foreclosed.^ ^^ 

Where  a  tenant  bought  a  title  to  the  demised  land  during  the  term 
at  a  sheriff's  sale,  this  title  extinguished  the  landlord's  title  and  could 
be  set  up  as  a  bar  to  an  action  for  rent  or  an  action  to  recover  pos- 
session of  the  premises.^^^  By  setting  up  the  title  which  has  been 
transferred  to  him  from  the  lessor,  a  tenant  affirms  rather  than  denies 
his  landlord's  title,  and  it  makes  no  difference  as  far  as  the  prin- 
ciple is  concerned  whether  the  conveyance  is  directly  from  the  land- 
lord or  from  a  trustee  having  a  prior  lien.^^^ 

A  default  in  the  condition  of  an  outstanding  mortgage  is  one 
mode  in  which  a  lessor's  title  may  come  to  an  end,  and  a  lessee  who 
has  procured  an  assignment  of  the  mortgage  would  not  be  estopped 
from  asserting  his  rights  as  assignee  and  the  default  in  the  condition 
of  the  mortgage,  to  protect  his  possession  when  sued  in  ejectment  by 
the  lessor. ^^*  Wlien  the  title  of  the  lessor  is  subsequently  taken  from 
him  and  determined,  and  the  lease  thereby  at  an  end,  the  lessee  is  not 
precluded  from  availing  himself  of  the  truth;  in  covenant  against  him 
for  non-payment  of  rent,  he  may  plead  the  determination  of  the 

App.  257,  31  N.  E.  1112;   Casey  v.  ""Keys  v.  Forrest,  90  Md.  132,  45 

Gregory,    13    B.    Mon.    (Ky.)     505;  Atl.  22;   "Wolf  v.  Johnson,  30  Miss. 

Ryder  v.  Mansell,  66  Me.  167.  513. 

"'Corrigan    v.    Chicago,    144    111.  "'Stout  v.   Merrill,   35    Iowa   47; 

537,  33  N.  E.  746;  St.  John  v.  Quit-  Wolf  v.  Johnson,  30  Miss.  513; 

zow,  72  111.  334;    Lamson  v.  Clark-  "=  Hetzel  v.   Barber,   69   N.  Y.   1; 

son,  113  Mass.  348;   Heckart  v.  Mc-  Jackson  v.  Rowland,   6   Wend.    (N. 

Kee,  5  Watts  (Pa.)  385.  Y.)   666,  670;   Nellis  v.  Lathrop,  22 

""Franklin  v.  Palmer,  50  111.  202,  Wend."(N.  Y.)  121;  Despard  v.  Wal- 

Board  &c.  v.  Herrington,  50  111.  232;  bridgfe,  15  N.  Y.  374. 

Corrigan  v.  Chicago,  144  111.  537,  33  "^  Carson   v.    Crigler,   9    111.   App. 

N.  E.   746;    Tilghman  vl  Little,   13  83;   Hardin  v.  Forsythe,  99  111.  312. 

111.  239;   Wolf  v.  Johnson,  30  Miss.  '=^  Pickett    v.    Ferguson,    45    Ark. 

513;    Jackson  v.  Rowland,  6  Wend.  177;  Niles  v.  Ransford,  1  Mich.  338; 

(N.  Y.)  666,  670;  Lancashire  v.  Ma-  Pierce  v.  Brown,  24  Vt.  165. 
son,  75  N.  Car.  455. 


§    704]  ESTOPPEL  TO  DENT  LANDLORD'S  TITLE.  834 

lessor's  title  in  bar;  and  in  ejectment  he  may  avail  himself  of  the 
expiration  of  the  lessor's  title  under  a  general  issue.^^^ 

§  704.  A  tenant  may  purchase  his  landlord's  title  at  an  execution 
sale  and  does  not  stand  in  such  a  fiduciary  relation  as  to  become  in  any 
sense  a  trustee  of  such  title  for  his  landlord,  it  being  open  to  him  to 
use  the  title  thus  acquired  to  defeat  an  action  for  rent  or  an  eject- 
ment suit.  That  the  legal  proceeding  resulting  in  judgment  and  ex- 
ecution against  the  landlord  existed  before  the  lease  was  granted  does 
not  affect  the  lessee's  rights.^^^  If  there  has  been  a  sheriff's  sale  of 
the  whole  reversion  in  demised  premises  and  the  tenant  redeems  or 
purchases  under  the  judgment,  no  action  can  be  sustained  against  him 
for  rent,  for  a  purchase  or  acquisition  of  title  under  a  judgment 
against  the  lessor  is  equivalent  to  his  voluntary  grant  by  deed.  It  is, 
to  be  sure,  acquiring  title  indirectly  and  by  operation  of  law  from  the 
lessor,  but  it  comes  through  his  act  and  consent  or  his  neglect  and 
is  therefore  the  same  in  legal  effect  as  ,if  he  had  granted  or  devised 
the  reversion. ^^'^  There  is  no  doubt  that  a  tenant  may  buy  of  .the 
landlord  at  private  sale.  There  is  no  consideration  of  law  or  public 
policy  to  prevent  his  bidding  when  his  landlord's  title  is  exposed  at 
an  involuntary  sale.  He  owes  no  duty  to  his  landlord  inconsistent 
with  his  right  to  purchase.  The  bidding  is  open  to  all  the  world,  and 
the  injury  is  no  greater  than  if  any  other  person  had  bought.^^® 

Not  only  has  the  tenant  the  full  right  to  purchase  his  landlord's 
title  on  an  execution  sale,  but  if  such  a  purchase  is  made  by  the  tenant, 
the  landlord  has  no  more  right  to  redeem  in  such  a  case  than  if  the 
purchase  had  been  by  a  stranger.^^''  But  it  has  been  held  that  the 
relation  of  trust  and  confidence  established  between  a  landlord  and 
tenant  are  such  as  to  render  it  inequitable  for  the  tenants  to  combine 
for  the  purpose  of  obtaining  the  title  of  their  landlord  at  judicial  sale 
or  otherwise,  without  notice  to  him.  This  combination  had  no  right 
to  proceed  to  sell  the  property,  knowing  it  to  be  the  property  of  the 

*="  Orleans  Co.  &c.  School  v.  65  Am.  Dec.  442;  Camley  v.  Stan- 
Parker,  25  Vt.  696.  field,  10  Tex.  546;   Elliott  v.  Smith, 

''«Nellis  v.  Lathrop,  22  Wend.  (N.  23  Pa.  St.  131;  Pickett  v.  Ferguson, 

Y.)    121,  34  Am.  Dec.  285;    Higgins  45  Ark.  177. 

v.    Turner,    61    Mo.    249;    Smith   v.  ^"  Nellis  v.  Lathrop,  22  "Wend.  (N. 

Scanlan,  106  Ky.  572,  51  S.  W.  152;  Y.)   121,  34  Am.  Dec.  285. 

Ryder    v.     Mansell,     66     Me.     167;  "^  Pickett    v.    Ferguson,    45    Ark. 

Pickett  V.  Ferguson,   86   Tenn.   642,  177. 

8   S.  W.   386,  overruling  dictum   in  '==>  Casey   v.   Gregory,    13    B.    Hon. 

Scott  V.  Levy,   6  Lea    (Tenn.)    662,  (Ky.)   505;   Pickett  v.  Ferguson,  45 

667;  Bettison  v.  Budd,  17  Ark.  546,  Ark.  177. 


825  ESTOPPEL  TO  DENY  LANDLORD'S  TITLE.  [§    705 

landlord,  without  notice  to  him.  It  would  be  a  breach  of  faith  to 
allow  the  property  to  be  sold  by  the  sheriff  to  any  one,  without  notify- 
ing the  landlord ;  much  more  so  for  the  tenants  to  procure  a  sale  upon 
their  own  judgment  and  execution.^®" 

Furthermore,  the  time  when  the  levy  of  execution  takes  place  is 
material,  for  if  made  before  the  term  commenced  it  cannot  be  claimed 
that  the  tenant  is  showing  his  landlord's  title  valid  at  the  time  of  de- 
mise has  since  expired  and  come  to  an  end.  Consequently,  it  has  been 
held  that  a  lessee  cannot  set  up  the  title  of  his  landlord's  execution 
creditor  if  the  execution  was  levied  prior  to  the  making  of  the  lease.^*^^ 

§  705.  After  a  judgment  of  eviction  has  been  obtained  against  a 
tenant,  he  may  proceed  to  buy  in  and  set  up  the  adverse  title  of  a 
stranger  and  it  is  not  necessary  that  he  be  actually  evicted  to  entitle 
him  to  do  this.^®^  But  where  it  appears  that  successful  resistance 
might  have  been  made  to  a  recovery  by  the  elder  title,  it  is  the  duty 
of  the  tenant  to  show  that  he  in  good  faith  made  defense,  or  at  least 
that  he  notified  his  landlord,  or  those  in  reversion  or  remainder,  of 
the  suit  against  him  for  possession.^*'^  Furthermore,  a  valid  outstand- 
ing title,  alone,  will  not  discharge  the  lessee  from  his  estoppel  to  deny 
title  of  landlord.  He  must  be  evicted  or  prevented  from  entering  or 
from  enjoying  the  thing  demised  by  virtue  of  such  title.^''*  Ac- 
ceptance of  a  lease  from  another  and  acknowledgment  of  possession 
under  him  will  not  discharge  the  estoppel  against  a  lessee  to-  deny 
his  original  landlord's  title.  He  may  be  equally  estopped  as  to  both.^^^ 
In  general,  unauthorized  attornment  to  a  third  person  does  not  af- 
fect the  landlord's  rights  or  make  the  holding  adverse,  as  such  attorn- 
ment is  void,  and  the  tenant  still  continues  to  be  the  tenant  of  the 
original  landlord,  holding  possession  for  him.^''^    Although  the  land- 

1'"  Matthews'  Appeal,   104   Pa.   St,  Robertson,   27   Ark.   50.     "A  lessee 

444.  cannot  deny  his  lessor's  title  until 

^•^Wood    V.     Turner,     8     Humph,  discharged    from    the    estoppel    by 

(Tenn.)  685;   s.  c.  7  Humph.  517.  yielding  up  possession  to  the  lessee; 

"^  Gore  V.  Stevens,  1  Dana   (Ky.)  nor  will  the  acceptance  of  a  lease 

201;  Mills  V.  Peed,  14  B.  Mon.  (Ky.)  from   any  other  enable   him   to   do 

180.  so  unless  when  he  has  been  evicted 

^^  Mills  V.  Peed,  14  B.  Mon.  (Ky.)  and  afterward  let  in  possession  by 

180.  a  new  and   distinct  title  of  a  new 

^"  McDowell  V.  Sutlive,  78  Ga.  142,  landlord,  and  this  bona  fide-"    Pate 

2  S.  E.  937;  McKesson  v.  Jones,  66  v.  Turner,  94  N.  Car.  47. 

N.  Car.  258;    Maverick  v.  Lewis,  3  "'^  Freeman  v.  Heath,  13   Ired.  L. 

McCord    (S.    Car.)    211;    Hawes    v.  (N.  Car.)  498. 

Shaw,  100  Mass.   187;    Simmons  v.  ^^Doe  v.   Reynolds,   27  Ala.   364; 


|§    706,    707]       ESTOPPEL  TO  DENT  LANDLOKD's  TITLE.  826 

lord's  title  may  be  bad,  his  tenant  cannot  dispute  it  so  long  as  the  true 
owner  permits  the  tenant's  occupation.^^^  And  if  a  tenant  has  en- 
joyed the  land,  he  cannot  repel  the  landlord's  claim  for  rent  by  say- 
ing he  had  nothing  in  the  land  or  that  the  lease  was  void.^®^ 

§  706.  An  evicted  tenant  may  take  a  new  lease  from  the  party 
evicting  him,  it  being  also  held  that  if  threatened  with  suit  upon  a 
paramount  title,  the  threat  under  such  circumstances  is  equivalent  to 
eviction.  He  may  thereupon  submit  in  good  faith,  and  attorn  to  a 
party  holding  a  valid  title,  to  avoid  litigation.  In  such  case  it  is  in- 
cumbent on  him  and  those  who  have  profited  by  his  admission  to  show 
the  existence  and  superiority  of  the  title  in  question.^^^  For  it  is 
always  open  to  proof  that  there  has  been  an  eviction  by  title  para- 
mount since  the  making  of  a  demise,^'^"  and  the  doctrine  of  estoppel 
between  landlord  and  tenant  does  not  bind  the  tenant  after  he  has  been 
evicted  and  let  into  possession  again  by  another  landlord  under  a  new 
and  distinct  title.^^^  Where  an  ejectment  suit  has  been  brought 
against  the  tenant  in  possession  and  successfully  prosecuted,  and  the 
tenant  yields  to  the  officer's  authority  and  executes  a  new  lease  to  the 
plaintiff  in  the  suit,  this  is  not  such  a  voluntary  act  as  to  make  it  a 
wrong  against  the  original  landlord.^^^ 

§  707.  Although  it  is  well  established  that  a  tenant  cannot  volun- 
tarily attorn  to  an  adverse  claimant,^^^  "it  is  equally  well  settled," 

Milsap  V.  Stone,  2   Colo.   137;    Mc-  ^•'^  Cook  v.  Cook,  28  Ala.  660;  Love 

Namee  v.  Relf,  52  Miss.  426;   Ruth-  v.  Law,  57  Miss.  596;  Allen  v.  Hall, 

erford  v.  Ullman,  42   Mo.  216;   Mc-  64  Neb.  256,  89  N.  W.  803;  Watson 

Cartney  v.  Auer,  50  Mo.  395;  Kepley  v.  Alexander,  1  Wash.   (Va.)   340. 

V.  Scully,  185  111.  52,  57  N.  E.  187;  ^^^Merryman   v.    Bourne,   9   Wall. 

Perkins   v.   Potts,   52   Neb.    110,   71  (U.     S.)     592,     600;     Lunsford     v. 

N.  W.  1017.  Turner,  5  J.  J.   Marsh    (Ky.)    104; 

iCT  Providence    Co.    Sav.    Bank    v.  Mayor  &c.  v.  Whitt,  15  M.  &  W.  571, 

Phalen,  12  R.  I.  495.     In  an  action  577;    Emery  and  Barnett,   In  re,   4 

for  rent  under  a  lease  which  had  C.  B.  (N.  S.)  423,  93  E.  C.  L.  423. 

been    accepted    from    the    plaintiff  "'Cook  v.  Basom,  164  Mo.' 594,  65 

alone,   defendant   set  up   then   that  S.  W.  227;  Corrigan  v.  Chicago,  144 

plaintiff   did   not  have  title  to  the  111.  537,  33  N.  E.  746;   Wheelock  v. 

entire  premises,  and  rent  had  been  Warschauer,  21  Cal.  309. 

recovered   by   his   co-owner.     Held,  "^Gilliam  v.  Moote,  Busb.  L.   (N. 

this  defense  could  not  be  set  up  be-  Car.)   95. 

cause  lessee  was  estopped  to  deny  "-Foss   v.   Van    Driele,    47    Mich, 

his  lessor's  title.     The  proper  way  201,  10  N.  W.  199. 

to   prevent   double    recovery   would  '"  Nissen  v.  Turner,  50  Neb.  272, 

have  been  to  have  filed  a  bill  of  in-  69   N.  W.   778;    Mosher  v.   Cole,  50 

terpleader.     McCoy   v.   Bateman,    8  Neb.  636,  70  N.  W.  275;  §  476. 
Nev.  126. 


II 


827  ESTOPPEL  TO  DENY  LANDLORD'S  TITLE.  [§    708 

declares  Justice  Wilde,  of  Massachusetts,  "that  if  the  lessee  is  dis- 
turbed in  his  occupation  by  a  party  having  a  title  paramount  to  that 
of  his  lessor,  so  that  he  cannot  legally  continue  his  occupation  under 
the  lessor  without  rendering  himself  liable  as  a  trespasser  to  the 
other  party,  he  may  yield  the  possession  and  take  a  new  lease  under 
him,  or  he  may  abandon  the  possession;  and  in  either  case  he  will 
thereafter  not  be  liable  to  pay  rent  to  the  original  lessor."  The  reason 
for  this  is  that  such  an  entry  and  disturbance  are  equivalent  to  an 
ouster,  as  where  execution  creditors  of  the  landlord  entered  claiming 
title,  and  threatening  to  put  the  lessee  out  unless  he  would  yield  pos- 
session and  attorn  to  them.^^*  But  while  a  tenant  may  attorn  to  one 
who  has  recovered  against  his  lessor  in  ejectment,  if  the  writ  and  re- 
turn be  set  aside,  his  relation  to  his  former  landlord  is  reestablished.^'^^ 
And  it  has  been  held  that  notice  to  the  landlord  of  the  pendency  of 
the  ejectment  suit  is  necessary,  mere  proof  of  the  judgment  of  eject- 
ment against  the  tenant  not  being  enough.  The  landlord  is  entitled 
to  an  opportunity  to  defend  the  ejectment  suit,  before  his  tenant  can 
justify  an  attornment  to  a  third  party.^'^ 

A  few  statutes  are  to  be  found  defining  the  right  of  tenants  to  at- 
torn to  adverse  claimants.  Thus,  under  the  California  statute  an 
attornment  to  a  stranger  is  void  unless  made  with  the  consent  of  the 
landlord  or  in  pursuance  of  a  judgment  at  law  or  decree  in  equity."^ 
A  statute  of  similar  import  is  to  be  found  in  Mississippi,^"  and  in 
Kentucky  there  is  an  enabling  act  authorizing  an  attornment  in  con- 
sequence of  a  judgment,  order,  or  decree  of  court."^ 

§  708.  Estoppel  does  not  bar  a  lessee  from  exercising  a  power  of 
eminent  domain.  All  the  property  in  the  country  is  held  subject  to 
the  power  of  eminent  domain,  the  exercise  of  which  is  subject  only  to 
the  limitation  that  just  compensation  must  be  made  in  all  cases  for 
the  property  taken.  There  is  no  distinction  in  principle  in  a  case 
where  the  state  is  already  in  possession  of  the  property,  as  lessee  under 
a  contract  with  the  lessor  to  deliver  possession  at  a  certain  time,  and 
an  ordinary  case  of  condemnation,  where  no  such  relations  growing 

"* George     v.     Putney,     4     Gush.        ""Douglas  v.  Fulda,  45  Gal.  592; 

(Mass.)   351,  354;  Palmtag  v.  Dout-  Calderwood  v.  Pyser,  31  Gal.  333. 
rick,    59    Gal.    154;     Carpenter    v.        "^Thompson    v.    Pioche,    44    Gal. 

Parker,  3  G.  B.   (N.  S.)  206,  235,  91  508. 
E.  C.  L.  206.  "« Tucker  v.  Whitehead,  58  Miss, 

™Goughanour    v.    Bloodgood,    27  762. 
Pa.  St.  285.  "'McMurtry    v.    Adams,    3    Bush 

(Ky.)   70. 


§    709]  ESTOPPEL  TO  DEXY  LAXDLOKD's  TITLE.  828 

out  of  contract  exist.  The  state  in  entering  into  the  contract,  acts 
merely  as  an  individual  may  do,  whereas  in  condemning  the  property, 
it  acts  in  its  sovereign  capacity.  In  other  words,  a  right  founded 
upon  a  contract  with  the  state  is  not  more  sacred  than  any  other 
property.^^**  Every  contract  is  made  in  subordination  to  certain  con- 
ditions, of  which  the  right  of  eminent  domain  is  one.^®^ 

§  709.  The  attornment  of  a  tenant  to  a  third  person  does  not  have 
the  effect  of  making  the  possession  of  the  tenant  the  constructive  pos- 
session of  the  stranger  to  whom  he  attorns  but  the  rightful  owner  is 
still  in  constructive  possession  through  his  tenant.^®-  For  a  tenant 
in  possession  to  accept  a  lease  from  a  stranger  does  not  make  his 
holding  adverse  to  the  original  lessor.^^^ 

While  the  attornment  of  a  tenant  to  a  stranger  does  not  alone 
operate  as  a  disseisin  of  a  landlord,  yet  if  possession  be  assumed  by 
other  acts  besides  the  attornment,  and  the  landlord  has  full  knowl- 
edge of  such  change,  the  holding  may  become  adverse  to  him.^^'*  More- 
over, attornment  to  a  stranger  is  not  wrongful  as  between  the  tenant 
and  the  stranger,  particularly  if  the  latter  has  a  right  to  evict  the 
landlord,  and  this  justifies  the  stranger  in  bringing  distress  for  rent,^^^ 

In  Kansas  it  has  been  held  that  a  tenant,  when  confronted  with  a 
tax  title,  is  justified  in  recognizing  the  grantee  in  such  deed  as  the 
owner  of  the  property;  and  this  decision  is  based  on  the  ground  that 
it  is  competent  to  show  that  the  landlord's  title  has  terminated.^^^ 
In  New  York  the  right  to  attorn  to  the  holder  of  a  tax  title  was 
'denied  the  tenant,  the  case  going  on  a  New  York  statute  which  only 
allowed  attornment  to  privies,  and  a  majority  of  the  court  being  of 
opinion  that  the  holder  of  the  tax  title  was  not  in  privity  with  the 
landlord.  The  court  argue  that  if  the  tax  is  not  paid,  then  the  state, 
by  virtue  of  its  taxing  power,  and  through  the  medium  provided  by 
statute,  either  acquires  the  land  or  grants  it  to  a  citizen.     The  pur- 

""Tait  V.  Central  &c.  Asylum,  84  835,  12  S.  E.  569;    Bryan  v.  Win- 

Va.  271,  4  S.  E.  697.  burn,  43  Ark.  28. 

^"'West  River  Bridge  Co.  v.  Dix,  '«^  Farrar  v,  Heinrich,  86  Mo.  521; 

6  How.    (U.  S.)    507;    Boom  Co.  v.  Dausch  v.  Crane,  109  Mo.  323,  19  S. 

Patterson,  98  U.  S.  403.  W.  61. 

^'-  Campbell  v.  Davis,  85  Ala.  56,  "*  Winn  v.  Strickland,  34  Fla.  610, 

4   So.   140;    Collier  v.   Carlisle,   133  16  So.  606. 

Ala.  478,  31  So.  970;   Pence  v.  Wil-  "'Smith  v.  Coker,  110  Ga.  650,  36 

liams,  14  Ind.  App.  86,  42  N.  E.  494;  S.  E.  105. 

Ratcliff  v.  Bellfonte  Iron  Works  Co.,  "'  Sheaff  v.  Husted,   60  Kan.   770, 

87  Ky.  559,  10  S.  W.  365,  10  Ky.  L.  57  Pac.  976,  reversing  8  Kan.  App. 

R.  643;  State  v.  Howell,  107  N.  Car.  271,  55  Pac.  507. 


829  ESTOPPEL   TO   DENY  LANDLORD'S   TITLE.  [§    709 

chaser  is  not  subjected  to  any  of  the  inconveniences  of  the  old  title, 
nor  can  he  take  advantage  of  it.^^'^ 

Under  the  Missouri  statute  a  tenant  is  authorized  to  attorn  to  a 
purchaser  under  the  foreclosure  of  the  landlord's  deed  of  trust  of 
older  date  than  the  lease,  and,  on  proper  exhibition  of  purchaser's 
deed,  he  must  so  attorn,^^^ 

The  meaning  of  the  Iowa  provision  in  regard  to  attornment  has 
been  declared  to  be  that  a  tenant  of  a  mortgagor  may  attorn  to  the 
mortgagee,  after  the  right  of  possession  of  the  mortgagor  is  cut  off 
under  the  statute — ^that  is,  after  time  for  redemption  from  the  sale 
under  the  mortgage  has  expired.^^^ 

As  has  already  appeared,  a  lessee  may  yield  to  the  title  of  a  levying 
creditor  of  a  lessor,  and  will  not  thereafter  be  liable  to  pay  rent  to  the 
original  lessor.^®**  But  in  an  action  by  the  execution  creditor,  for  use 
and  occupation,  against  a  tenant  in  possession  under  the  execution 
debtor,  the  tenant  might  take  advantage  of  a  defect  in  the  levy.  The 
tenant  has  a  right  to  protect  himself  against  a  double  payment,  by 
objecting  to  the  creditor's  title;  so  that  whether  the  levy  be  void,  or 
merely  voidable,  is  not  material.^®^ 

"^O'Donnell  v.  Mclntyre,  118  N.  Mills  v.  Heaton,  52  Iowa  215,  2  N. 
Y.  156,  23  N.  B.  455.  W.  1112. 

^^^Holden  &c.  Asso.  v.  Wann,  43  ""George  v.  Putney,  4  Cush. 
Mo.  App.  640.  (Mass.)   351. 

"^  Mills  v.  Hamilton,  49  Iowa  105;         "^  Pickett     v.     Breckenridge,     22 

Pick.  (Mass.)  297. 


CHAPTER  XL 

FIXTURES. 

§  710.  The  general  rule  of  law  is  that  whatever  is  fixed  to  the  soil 
becomes  a  part  of  the  realty,  and  every  case  in  which  there  exists  the 
right  of  severing  and  removing  a  thing  which  has  been  affixed  to  the 
soil  of  another  is  considered  as  an  exception  to  the  general  rule  above 
stated.  This  right  of  removal  is  a  special  privilege  conferred  by  the 
law  in  certain  cases  from  reasons  of  public  policy  upon  certain  classes 
of  persons,  in  derogation  of  what  would  otherwise  be  the  rights  of  the 
owner  of  the  soil.  In  an  early  case  it  was  laid  down  as  a  general 
rule  "that  where  the  instrument  or  utensil  is  an  accessory  to  anything 
of  a  personal  nature,  as  to  the  carrying  on  of  a  trade,  it  is  considered 
a  chattel ;  but  where  it  is  a  necessary  accessory  to  the  enjoyment  of  the 
inheritance,  it  is  to  be  considered  as  a  part  of  the  inheritance."^  In 
accordance  with  this  principle,  salt  pans,  which  were  very  slightly 
fixed  with  mortar  to  the  floor  and  might  be  removed  without  injuring 
the  building,  were  held  to  be  fixtures.  "The  present  case,"  said  Lord 
Mansfield,  "is  very  strong.  The  salt  spring  is  a  valuable  inheritance ; 
but  no  profit  arises  from  it  unless  there  is  a  salt  work,  which  consists 
of  a  building  for  the  purpose  of  containing  the  pans  which  are  fixed 
to  the  ground.  The  inheritance  cannot  be  enjoyed  without  them. 
They  are  accessories  necessary  to  the  use  and  enjoyment  of  the  prin- 
cipal. The  owner  erected  them  for  the  benefit  of  the  inheritance."^ 
So  a  steelyard  hung  in  a  machine-house  was  a  fixture  because  the 
principal  purpose  of  the  house  was  for  weighing.^  The  mere  fixing 
and  fastening  is  not  alone  to  be  considered,  but  the  use  and  nature  of 
the  article  and  the  intention  of  the  parties.  So,  if  furnishings  are  in 
their  nature  articles  of  furniture,  the  fact  that  they  were  fastened  to 
the  walls,  for  safety  or  convenience,  does  not  deprive  them  of  their 
character  as  personal  chattels  and  make  them  a  part  of  the  realty.* 

*  Olympic      Theatre,      2      Browne        =Rex  v.  Inhabitants  of  St.  Nicho- 
(Pa.)  275,  285.  las,  Cald.  262. 

"Lawton    v.    Salmon,    1    H.    Bl.        ^Winslow  v.  Merchants'  Ins.  Co., 
259,  n.  4  Mete.  (Mass.)  306. 

830 


I 


831  FIXTURES.  [§    711 

Thus,  a  glass  case,  a  case  of  drawers,  a  mirror  and  gas  fixtures,  though, 
fastened  to  the  walls,  were  not  annexed  to  the  realty  so  as  to  become 
part  of  it.  The  nature  of  the  articles,  the  circumstances  under  which 
they  were  placed  in  the  building,  the  mode  of  their  connection,  and 
the  relation  which  they  bear  to  the  use  of  the  freehold,  are  not  such  as 
to  give  them  the  character  of  fixtures  or  additions  to  the  real  estate.^ 
It  is  impossible  to  regard  personal  property  capable  of  removal  from 
the  land,  which  does  not  belong  to  the  land-owner,  as  part  of  the 
realty.  So  it  was  held  that  machines  fastened  in  a  building  by  bolts 
and  screws,  and  removable  without  injury  to  the  building,  did  not 
become  a  part  of  the  realty.*' 

However,  the  principle  of  law  is  that  whatever  is  planted  in  the 
soil  belongs  to  the  soil — quic  quid  piantatur  solo,  solo  cedit;  while  the 
tenant  may  have  the  right  to  remove  fixtures  of  a  certain  nature,  they 
are  not  goods  and  chattels  at  all,  but  parcel  of  the  freehold,  and  as 
such  not  recoverable  in  trover.'''  Therefore,  it  has  been  held  that  an 
action  of  trover  will  not  lie  against  a  landlord  for  the  conversion  of 
fixtures,  during  the  term  of  the  lease,  while  they  remain  unsevered 
from  the  realty.^  And  the  price  of  the  fixtures  of  a  house  cannot  be 
recovered  by  the  tenant  under  a  declaration  for  goods  sold  and  de- 
livered.^ The  doctrine  of  the  law  of  landlord  and  tenant  is  not  that 
the  articles  attached  to  the  freehold  remain  chattels  for  the  purposes 
of  removal,  but  that,  under  certain  circumstances,  parts  of  the  free- 
hold may  be  removed  by  the  tenant. 

§  711.  The  original  doctrine  was  that  fixtures  were  generally  re- 
garded as  immovable,  and  therefore,  as  belonging  to  the  landlord, 
though  erected  by  the  tenant  and  at  his  own  expense ;  but  this  doctrine 
has  been  modified,  in  modern  times,  to  meet  the  wants  and  necessities 
of  trade  and  commerce,  and  the  arts  and  sciences,  until  now,  perhaps, 
a  majority  of  fixtures  erected  by  tenants  may  be  removed,  if  done 
whilst  the  tenant's  dominion  over  the  leased  premises  still  exists.^" 

In  regard  to  the  additions  which  do  become  fixtures  in  that  they  are 
temporarily  attached  to  the  freehold,  the  exception  in  favor  of  a  tenant 
allows  him  to  remove  trade,  domestic  and  ornamental  fixtures,  but  not 

"Guthrie  v.  Jones,  108  Mass.  191.  *  Guthrie  v.  Jones,  108  Mass.  191. 

^Bartlett   v.    Haviland,    92    Mich.  ^  Lee  v.  Risdon,  7  Taunt.  188. 

552,  52  N.  W.  1008;    Scudder  v.  An-  i"  Thomas  v.  Cront,  5  Bush    (Ky.) 

derson,  54  Mich.  126,  19  N.  W.  775.  37;     Coombs    v.    Jordan,    3    Bland 

^  Mackintosh  v.  Trotter,  3  M.  &  W.  (Md.)    284,  22  Am.  Dec.  236;    Tate 

184;  Minshall  v.  Lloyd,  2  M.  &  W.  v.  Blackburne,  48  Miss.  1;  Jones  on 

450.  Mort.,  §  441. 


§    712]  FIXTURES.  833 

other  fixtures.^^  A  tenant  who  has  put  trade  fixtures  into  a  building 
has  a  right  to  remove  them  if  it  can  be  done  without  permanent  injury 
to  the  freehold,  provided  the  right  is  exercised  within  proper  time. 
The  right  must  be  exercised  during  the  term  of  the  lease.^^  Neverthe- 
less, trade  fixtures  become  part  of  the  realty,  whatever  intention  to  the 
contrary  on  the  part  of  the  tenant  erecting  them  may  be  inferred 
from  his  limited  interest  in  the  land.  The  indulgence  shown  by  the 
law  to  the  tenant  in  allowing  him  to  remove  them  during  his  term 
arises,  not  from  any  regard  to  his  intention,  but  by  way  of  exception 
to  a  rule  which  would  otherwise  work  hardship  or  retard  improve- 
ment.^^ 

§  712.  Fixtures  which  would  be  destroyed  in  removal. — In  de- 
termining whether  an  addition  by  the  tenant  to  a  leased  building  is 
removable  or  not  by  him  during  the  term,  the  mode  of  its  annexation 
is  to  be  considered,  and  whether  it  can  be  removed  without  substantial 
injury  to  the  building  or  to  itself.  It  has  been  held  that  the  right  of 
removal  should  not  be  extended  so  far  as  to  include  a  thing  which 
cannot  be  severed  from  the  realty  without  being  destroyed  or  reduced 
to  a  mere  mass  of  crude  materials.  A  baker's  oven  so  united  with  the 
building  that  the  two  were  inseparable  without  the  destruction  of  the 
oven  and  a  substantial  injury  to  the  building,  is  not  a  removable  trade 
fixture.^'*  On  the  other  hand,  the  Illinois  Supreme  Court  held  that 
removable  trade  fixtures  might  include  boilers,  ovens,  and  other  trade 
appliances  if  they  may  be  removed  without  injury  to  the  freehold. 
The  fact  that  the  masonry  of  the  ovens  and  boilers  must  be  taken 
down,  brick  by  brick,  and  that  the  iron  work  must  be  taken  apart, 
does  not  destroy  the  tenant's  right  to  remove  them,^^  the  general  rule 
in  Illinois  being  exceptionally  liberal  in  favor  of  the  tenant.  As  be- 
tween him  and  the  landlord,  removable  trade  fixtures  may  include 
all  erections  made  for  the  purpose  of  trade,  such  as  soap-vats,  engines, 
a  working  colliery,  pans  used  in  manufacturing  salt,  brewhouses, 
furnaces,  greenhouses  and  hothouses  erected  by  nurserymen  and 
gardeners.^^  Ordinarily  such  things  cannot  be  removed  without  in- 
jury to  the  material  composing  them,  and  there  is  no  reason  why  an 

"  Wright  v.   Du   Bignon,   114   Ga.  "  Treadway  v.  Sharon,  7  Nev.  37. 

765,  40  S.  E.  747;  Charleston  &c.  R.  "  Collamore   v.    Gillis,    149    Mass. 

Co.  V.  Hughes,  105  Ga.  1,  23,  30  S.  578,  29  N.  E.  46. 

E.  972;    McCracken  v.  Hall,  7  Ind.  «  Baker  v.  McClurg,  198  111.  28,  64 

30.  N.  E.  701,  affirming  96  111.  App.  165. 

"Allen  V.  Kennedy,  40  Ind.  142;  "Moore  v.  Smith,  24  111.  513. 
Poole's  Case,  1  Salk.  368. 


833  FIXTURES.  [§    713 

exception  should  be  made  in  the  case  of  ovens,  an  engine,  and  a  boiler. 
It  has  even  been  held  that  a  two-story  house  with  brick  chimney  and 
foundations  was  so  removable.  ^^  "Indeed,  it  is  difficult  to  conceive," 
said  the  Supreme  Court  of  the  United  States,  "that  any  fixture  how- 
ever solid,  permanent,  and  closely  attached  to  the  realty,  placed  there 
for  the  mere  purposes  of  trade,  may  not  be  removed  at  the  end  of  the 
term."^^ 

On  the  other  hand  the  New.  Jersey  court  held  the  fact  that  the  ar- 
ticles in  dispute  might  be  removed  and  used  elsewhere  is  not  decisive 
of  their  character. ^^  Trade  fixtures  to  be  capable  of  removal  by  a 
tenant  must  be  additions  made  by  the  tenant  to  the  property  of  the 
landlord  and  not  substitutions  for  essential  parts  of  it  which  the  ten- 
ant has  irrecoverably  removed.  When  a  tenant  accepts  a  lease  of  a 
mill  and  covenants  to  keep  it  in  repair  and  during  the  term  takes  the 
greater  part  of  the  equipment  out  of  the  mill  and  puts  new  machinery 
in  its  place,  he  will  be  restrained  from  removing  such  new  machinery 
and  thus  dismantling  the  mill.^'' 

§  713.  Agreements  as  to  removal. — The  rules  of  common  law,  re- 
lating to  the  rights  of  lessor  and  lessee,  in  buildings  and  other  struc- 
tures erected  by  the  lessee  upon  the  property  leased,  and  in  such  things 
as  are  annexed  to  any  buildings  or  structures  thereon,  are  liable  to  be 
changed  and  modified  in  any  way  by  agreements  between  the  parties 
on  the  subject.  So  far  as  such  agreements  extend,  the  question  is  no 
longer  what  is  the  common  law,  but  what  have  the  parties  agreed. ^^ 
In  accordance  with  this  principle  it  has  been  settled  by  many  decisions 
that  where  a  building  is  erected  by  one  man  upon  the  land  of  another, 
by  his  permission,  upon  an  agreement  or  understanding  that  it  may  be 
removed  at  the  pleasure  of  the  builder,  it  does  not  become  a  part  of  the 
real  estate,  but  continues  to  be  a  personal  chattel  and  the  property  of 
the  person  who  erected  it.  In  such  case  it  is  immaterial  what  is  the 
purpose,  size,  material,  or  mode  of  construction  of  such  building.^- 

"Van  Ness  v.  Pacard,  2  Pet.   (U.  bois.v.  Kelley,  10  Barb.  (N.  Y.)  496; 

S.)    137;    Moore  v.  Wood,  12  Abb.  Wall  v.  Hinds,  4  Gray  (Mass.)  256, 

Pr.  (N.  Y.)  393.  273;   Dame  v.  Dame,  38  N.  H.  429; 

"Wiggins   Ferry  Co.  v.  Ohio  &c.  Foley  v.  Addenbrooke,  13  M.  &  W. 

R.  Co.,  142  U.  S.  396,  12  S.  Ct.  188.  174;    Naylor   v.    Collinge,   1   Taunt. 

"Feder  v.  Van  Winkle,  53  N.  J.  19;    Thresher   v.   East   London    &c. 

Eq.  370,  33  Atl.  399.  Co.,  2  B.  &  C.  608. 

^'Ashby  V.  Ashby,  59  N.  J.  Eq.  536,  "  Vanness   v.   Pacard,   2   Pet.    (U. 

46  Atl.  528.  S.)   137;   Keefe  v.  Furlong,  96  Wis. 

^Merritt  v.  Judd,  14  Cal.  59;  Du-  219,  70  N.  W.  1110. 
Jones  L.  &  T.— 53 


§    714]  FIXTURES.  834 

It  is  merely  personal,  and  is  governed  by  the  same  rules  as  any  other 
article  of  personal  property;  as  for  instance,  a  pile  of  lumber,  left  by 
consent  of  the  owner  of  the  land  upon  his  premises." 

Specific  provisions  in  a  lease  as  to  the  removal  of  structures  to  be 
erected  by  the  tenant  are  controlling  and  in  respect  to  such  removal 
the  question  of  the  tenant's  rights  at  common  law  does  not  arise.^* 
The  principle  is  well  settled  that  parties  may  treat  as  personal  prop- 
erty machinery  which  would  otherwise  be  part  of  the  realty  and  thus 
convert  it  into  personal  property  as  between  themselves. ^^  Under  a 
contract  between  landlord  and  tenant  for  the  tenant  to  erect  buildings 
at  his  own  expense  with  the  privilege  of  removing  them  at  any  time 
during  the  lease,  they  do  not  become  a  part  of  the  land  and  may 
be  moved  off  the  leased  premises,  as  they  continue  to  be  personal  chat- 
tels and  the  property  of  the  person  who  builds  them.2«  ^  purchaser 
of  the  reversion,  though  without  notice  of  such  an  agreement,  acquires 
no  title  or  interest  in  the  buildings  covered  by  it.  They  continue  to 
be  personal  property  and  do  not  pass  by  a  conveyance  of  the  land." 

Where  a  mere  tenant  at  will  is  entitled  by  agreement  to  remove  fix- 
tures, a  conveyance  of  the  estate  would  of  course  terminate  the  will 
and  revoke  the  license  to  allow  the  building  to  remain  upon  the  prem- 
ises, but  the  lessee  at  will  must  receive  actual  or  constructive  notice 
of  the  conveyance  before  he  forfeits  his  right  of  removal.^® 

§  714.  If  a  grantee  of  the  reversion  is  injured  by  an  agreement 
which  entitles  the  tenant  to  remove  buildings  or  fixtures,  from  the 
granted  premises,  his  remedy  is  upon  the  covenants  in  the  deed.  A 
grantor  who  executes  a  conveyance  of  land  undertakes  to  convey  every- 
thing described  in  his  deed ;  and  by  a  covenant  of  seisin  he  assumes  to 
be  the  owner  of  all  he  undertakes  to  convey.  Trees,  buildings,  fix- 
tures and  fences  on  a  farm,  are  corporeal  in  their  nature  and  the  sub- 

=»  Smith  v.  Benson,  1  Hill  (N.  Y.)  47  Mo.  297;  Priestley  v.  Johnson,  67 

17g^  Mo.  632;   Union  &c.  Ins.  Co.  v.  Til- 

=**Linahan  v.  Barr,  41  Conn.  471;  lery,  152  Mo.  421,  54  S.  W.  220;  In- 

Allen  V.  Gates,  73  Vt.  222,  50  Atl.  habitants    &c.    v.    Jones,    8    Cush. 

1092;    Town  of  Lemington   v.   Ste-  (Mass.)  184;  Howard  v.  Fessenden, 

vens,  48  Vt.  38.  14  Allen  (Mass.)  124. 

^=Keefe  v.  Furlong,  96  Wis.  219,  "Russell  v.  Richards,  10  Me.  429; 

70  N.  W.  1110;   Smith  v.  Waggoner,  Dubois  v.  Kelley,  10  Barb.    (N.  Y.) 

50  Wis.  155,  6  N.  W.  568;  Fitzgerald  496;    Smith   v.  Benson,   1   Hill    (N. 

v.  Anderson.  81  Wis.  341,  51  N.  W.  Y.)   176. 

554.  =«  Dubois  v.  Kelley,  10  Barb.   (N. 

==«  Goodman  V.  Hannibal  &c.  R.  Co.,  Y.)    496;    Rising    v.    Stannard,    iTj 

45    Mo.    33;    Lowenberg   v.    Bernd,  Mass.  282,  286. 


835  FIXTURES.  [§    715 

jects  of  seisin,  like  the  land  itself  of  which  they  are  regarded  in  the 
law  as  a  part.  Fences  are  not  only  indispensable  to  the  enjoyment  of 
real  estate,  but  they  are  in  their  nature  real  estate,  to  the  same  extent 
that  houses  and  other  structures  on  the  land  are  so.  A  rail  applied 
to  its  appropriate  use  in  building  a  fence  or  a  house  becomes  real  es- 
tate and  is  governed  by  the  law  regulating  land.  So  a  fence  being 
within  the  description  of  a  deed  of  land  is  part  of  that  which  the  deedj 
purports  to  convey  and  of  which  the  grantor  covenants  that  he  is  the 
owner.^^ 

§  715.  The  agreement  allowing  removal  must  be  made  before  the 
building  is  erected,  for  it  has  also  been  decided  that  if  a  building  has 
once  been  annexed  to  the  realty,  any  subsequent  contract  of  the  owner 
or  any  acts  of  his,  such  as  giving  a  chattel  mortgage,  without  a  sever- 
ance, will  not,  as  against  a  purchaser  of  the  land,  disconnect  it  from 
the  realty  and  give  it  the  character  of  personal  property.  The  ad- 
mitted intention  of  the  parties,  to  change  this  to  personal  property, 
was  one  which  the  law  could  not  carry  into  effect.  So,  where  the  owner 
of  the  land  agreed,  after  the  house  was  commenced  and  before  it  was 
completed,  that  the  builder  should  hold  it  as  personal  property,  the 
agreement  was  inoperative,  and  the  house  became  annexed  to  the 
realty,  as  to  a  subsequent  grantee  of  the  land.^° 

After  the  execution  of  a  mortgage  deed  of  trust  on  land,  the  mort- 
gagor would  have  no  right  to  enter  into  an  agreement  that  buildings 
erected  by  a  tenant  should  remain  personal  property  and  thereby 
bind  a  purchaser  at  a  sale  under  the  mortgage;  the  rule  being  that 
if  a  mortgagor  erects  improvements  or  attaches  fixtures  to  the  mort- 
gaged premises,  they  become  the  property  of  the  mortgagee  for  the 
payment  of  his  debt.^^    The  fixtures  attached  at  the  time  of  sale  un- 

'°  Mott  V.  Palmer,  1  N.  Y.  564.    In  come  the  owner  of  that  which  was 

Mitchell  V.  McNeal,  4  Colo.  App.  36,  the  property  of  the  tenant  because 

34  Pac.  840,  the  proposition  decided  of  a  subsequent  transfer." 
Is  that  covenants  in  a  valid  parol         Under    the    Georgia    code    fences 

lease  run  with  the  land.    One  of  the  permanently  affixed  to  land  consti- 

arguments  of  the  court  is  that  "If,  tutes  a  part  of  the  realty.    Ga.  Civ. 

by  the  terms  of  the  agreement  be-  Code,   §  2219;    Bagley  v.   Columbus 

tween  the  lessor  and  the  lessee,  the  &c.  R.  Co.,  98  Ga.  626,  25  S.  E.  638. 
lessee  should   erect  a  structure  on        ^"Richardson  v.  Copeland,  6  Gray 

the   property   which   by    their   con-  (Mass.)     536;    Gibbs    v.    Estey,    15 

tract  was  to  remain  a  chattel  with  Gray   (Mass.)   587;   Madigan  v.  Mc- 

the  right  of  removal,  it  would  hard-  Carthy,  108  Mass.  376. 
ly    be    seriously    argued    that    the        =»  Curry  v.    Schmidt,   54   Mo.   515, 

grantor   could   escape   the   force   of  517;  Butler  v.  Page,  7  Mete.  (Mass.) 

the  agreement,  or  the  grantee   be-  40;  Jones  on  Mort.,  §  428. 


§    716]  FIXTURES.  836 

der  a  deed  of  trust  pass  by  the  sale.^^  If  a  purchaser  at  such  sale  has 
no  notice  of  the  contract  for  removal  at  the  time  he  acquires  title  to 
the  land  upon  which  the  buildings  stand,  the  tenant  occupies  no  more 
advantageous  position  toward  such  purchaser  with  respect  to  the  build- 
ings than  the  landlord  mortgagor  does.  As  the  latter  cannot  remove 
the  buildings  without  the  permission  of  the  purchaser,  it  follows  logic- 
ally that  the  tenant  cannot  do  so.^^ 

An  agreement  by  which  a  tenant  releases  his  right  to  remove  trade 
fixtures  is  equally  binding  on  one  claiming  through  him.  Thus, 
where  a  lease  stipulated  that  the  lessee  should  not  remove  improve- 
ments, his  attaching  creditor  could  acquire  no  rights  in  such  improve- 
ments as  against  the  lessor,  although  without  such  stipulation  in  the 
lease,  they  would  have  been  removable  by  the  lessee  as  trade  fixtures 
and  the  attaching  creditor  had  no  notice  of  the  agreement.^"*  The 
general  rule  sustained  by  modern  authority  is  that  an  attaching 
creditor  can  acquire  no  greater  right  to  improvements  or  fixtures 
placed  upon  the  leasehold  by  the  tenant  than  the  tenant  himself  had.^^ 

§  716.  In  the  absence  of  a  special  agreement  a  tenant  under  a 
lease  for  a  specific  term  must  ordinarily  remove  his  fixtures  during  the 
term,  or  at  farthest  during  the  time  he  remains  in  possession  of  the 
leased  premises  under  a  right  to  still  consider  himself  a  tenant.^" 
Furthermore  where  the  term  is  surrendered,  or  is  put  an  end  to  by 
the  lessor  under  a  forfeiture  clause,  the  right  of  the  tenant  to  remove 
his  fixtures  is  gone  as  effectually  as  if  the  term  had  expired  by  lapse 
of  time.^^  This  right  of  the  tenant,  whereby  he  may  sever  fixtures 
from  the  freehold  and  restore  them  to  their  former  condition  as  chat- 
tels, is  referred  to  in  the  books  as  a  "privilege.^'    The  limitation  upon 

^^^  Sands  v.   Pfeiffer,   10   Cal.   258;  Atl.  370,  16  Atl.  301;  Griffin  v.  Rans- 

Cohen  v.  Kyler,  27  Mo.  122.  dell,   71    Ind.   440;    Dingley  v.   Buf- 

=^  Union    &c.    Ins.    Co.    v.    Tillery,  fum,  57  Me.  381;  Torrey  v.  Burnett, 

152  Mo.  421,  54  S.  W.  220.  38  N.  J.  L.  457;   Youngblood  v.  Eu- 

'*  Little   Valeria   &c.   Co.   v.   Lam-  bank,  68  Ga.  630;  Haflick  v.  Stober, 

bert,  15  Colo.  App.  445,  62  Pac.  966.  11  Ohio  St.  482;   Burk  v.  Hollis.  98 

^Waples   on   Attachment   &   Gar-  Mass.   55;    Leader  v.   Homewood,  5 

nishment,  §  258;  Manwaring  v.  Jen-  C.  B.  (N,  S.)  546,  94  E.  C.  L.  546. 
ison,   61   Mich.   117,   139,   27    N.    W.         ''  Morey  v.  Hoyt,  62  Conn.  542,  26 

899;   Morey  v.  Hoyt,  62  Conn.  542,  Atl.  127;   Davis  v.  Moss,  38  Pa.  St. 

547,  26  Atl.  127;  Friedlander  v.  Ry-  346;   Whipley  v.  Dewey,  8  Cal.  36; 

der,  30  Neb.  783,  47  N.  W.  83;  Rex  Kutter   v.    Smith,   2   Wall.    (U.   S.) 

v.  Topping,  McCl.  &  Y.  544.  491;   Friedlander  v.  Ryder,  30  Neb. 

'•Morey  v.  Hoyt,  62  Conn.  542,  26  783,  47  N.  W.  83;  Pugh  v.  Arton,  L. 

Atl.  127;  Loughran  v.  Ross,  45  N.  Y.  R.  8  Eq.  626;  Weeton  v.  Woodstock, 

792;  Carlin  v.  Ritter,  68  Md.  478,  13  7  M.  &  W.  14. 


S37  FIXTURES.  [§    716 

its  exercise,  viz.,  that  he  must  do  so  while  in  possession  as  tenant  is 
obvious.  If  he  does  not  exercise  the  privilege  during  that  period,  or 
indeed,  if  he  acts  inconsistent  with  a  claim  to  the  fixtures  as  distinct 
to  the  land,  he  is  regarded  as  having  waived  his  right,  and  the  fixtures 
in  such  case,  being  a  part  of  the  freehold,  belong  to  the  landlord.^* 
This  general  rule  has  been  laid  down  in  many  cases,  that  things  which 
a  lessee  has  annexed  to  the  freehold,  if  movable  at  all,  must  be  re- 
moved before  the  expiration  of  the  tenancy.^**  If  a  tenant  does  not 
remove  his  fixtures  during  the  term  or  at  its  expiration,  he  will  be 
presumed  to  have  abandoned  them.  But  this  presumption  may  be  re- 
butted by  proof  of  a  parol  agreement  between  the  parties.***  Some 
sort  of  agreement  is  necessary,  however,  to  entitle  a  tenant  to  remove 
fixtures  after  the  end  of  the  term.*^ 

A  mere  permission  to  leave  fixtures  behind  does  not  amount  to  a 
license  to  reenter  and  remove  them  after  a  surrender  of  possession, 
there  being  no  express  recognition  of  a  right  of  property  in  the  tenant 
after  surrender.  Where  the  question  and  answer  upon  which  the  al- 
leged agreement  is  founded  are  both  ambiguous,  and  the  conversation 
will  bear  the  construction. of  being  founded  on  the  convenience  of  the 
tenants  to  leave  the  fixtures  behind  to  save  the  trouble  and  expense  of 
removing  them,  it  would  be  dangerous  to  imply  a  right  to  enter  upon 
realty  and  sever  things  attached  to  it,  upon  such  vague  and  ambiguous 
language.*^ 

As  it  is  not  known  when  the  rights  of  tenants  at  will  or  for  an  un- 
certain period  will  terminate,  they  will  have  a  reasonable  time  after 
such  termination  in  which  to  remove  fixtures.*^  After  the  tenant's 
rights  have  been  terminated  and  they  have  been  urged  to  remove  a 

'*  Bauernschmidt    &c.    Co.    v.    Mc-  394;  Colegrave  v.  Dias  Santos,  2  B. 

Colgan,    89    Md.    135,    42    Atl.    907;  &  C.  76;  Josslyn  v.  McCabe,  46  Wis. 

Northern  &c.  R.  Co.  v.  Canton  Co.,  591,  1  N.  W.  174;    Childs  v.  Hurd, 

30  Md.  347,  355;  Van  Ness  v.  Pacard,  32  W.  Va.  66,  9  S.  E.  362. 

2  Pet.  (U.  S.)  137,  143.  ^"McCracken  v.  Hall,  7  Ind.  30. 

^"Merritt  v.  Judd,  14  Cal.  59;  Dos-  «  McCracken  v.   Hall,   7   Ind.   30; 

tal  v.  McCaddon,  35  Iowa  318;  Free  Cromie  v.  Hoover,  40  Ind.  49. 

V.  Stuart,  39  Neb.  220,  57  N.  W.  991;  ^=  Josslyn  v.  McCabe,  46  Wis.  591, 

Friedlander  v.  Ryder,  30  Neb.  783,  1  N.  W.  174.     In  Fitzgerald  v.  An- 

787,  47  N.  W.  83;  White  v.  Arndt,  1  derson,  81  Wis.  341,  51  N.  W.  554, 

Whart.  (Pa.)  91;  Sweet  v.  Myers,  3  an  alleged  agreement  regarding  re- 

S.  D.  324,  53  N.  W.  187;  Ombony  v.  moval  was  not  established. 

Jones,    19    N.    Y.    234,    238;    Poole's  "Howard  v.  Fessenden,  14  Allen 

Case,  1  Salk.  368;  Quincy,  Ex  parte,  (Mass.)     124;    Burk    v.    Hollis,    98 

1  Atk.  477;  Lee  v.  Risdon,  7  Taunt.  Mass.  55;  Talbot  v.  Whipple,  14  Al- 

188;    Lyde  v.  Russell,   1   B.  &  Ad.  len   (Mass.)   177. 


§§  717,  718]  FIXTURES.  838 

building,  with  ample  allowance  of  time  to  do  so,  the  landlord  would 
not  be  a  trespasser  in  entering  upon  the  land  and  taking  possession 
of  the  building.  He  was  not  obliged  to  remove  it  for  them,  or  to  per- 
mit an  indefinite  occupancy  of  the  land.** 

A  forfeiture  for  non-payment  of  rent  not  being  a  voluntary  termi- 
nation of  the  lease,  the  rule  that  a  tenant  must  remove  trade  fixtures 
during  the  term  does  not  apply,  but  in  such  ease  the  tenant  has  a  rea- 
sonable time  after  the  termination  of  the  tenancy  for  the  exercise  of 
his  right,  and  his  right  to  remove  his  fixtures  is  not  lost  by  a  for- 
feiture of  the  lease.*^ 

§  717.  Where  a  right  of  removal  conferred  by  agreement  is  con- 
ditioned on  the  performance  of  all  the  undertakings  in  the  lease, 

actual  performance  of  such  undertakings  forms  a  condition  precedent 
to  the  removal  of  improvements  and  an  offer  to  perform  is  not  suffi- 
cient.*® 

A  lessee  leaving  during  the  term  and  paying  rent  as  long  as  he 
occupied,  does  not  become  entitled  to  remove  improvements  under  a 
clause  allowing  removal  provided  the  rents- were  paid  which  may  be 
due  upon  the  expiration  of  the  lease.*^  Payment  of  rent  as  a  con- 
dition precedent  to  the  removal  of  a  building  from  leased  premises 
would  bind  a  purchaser  from  the  lessee,*® 

Buildings  may  be  sold  and  transferred  as  personalty  if,  by  the  con- 
dition of"  the  lease,  they  may  be  removed  by  the  lessee  at  the  expiration 
of  the  term.  It  is  immaterial  that  the  right  of  removal  is  conditioned 
upon  the  final  fulfillment  of  the  stipulations  in  the  lease,  as  such  a 
condition  may  attach  against  the  buildings  while  in  the  hands  of  the 
transferee.*** 

§  718.  Effect  of  renewal  on  right  to  remove  fixtures. — According 
to  the  weight  of  authority,  a  new  contract  between  the  landlord  and 
tenant  which  neither  merely  renews  or  extends  the  former  lease,  but 
creates  a  new  term  without  reserving  any  right  to  the  fixtures  an- 
nexed, forfeits  the  tenant's  privilege  of  removal.'"    The  right  to  re- 

"  Sullivan  v.  Carberry,  67  Me.  531.  «  Dryden  v.  Kellogg,  2  Mo.  App. 

*=Updegraff    v.    Lesem,    15    Colo.  87. 

App.  297,  62  Pac.  342.  "^"Carlin  v.  Ritter,  68  Md.  478,  13 

« Clemens  v.  Murphy,  40  Mo.  121.  Atl.    370;    Hedderick  v.    Smith,   103 

*^Mathinet   v.    Giddings,    10    Ohio  Ind.  203,  2  N.  E.  315;  Sanitary  Dist. 

364.  v.  Cook,  169  111.  184,  48  N.  E.  461; 

**  Forbes  v.  Williams,  1  Jones  L.  Bauernschmidt  &c.  Co.  v.  McColgan, 

(N.  Car.)  393.  89  Md.  135,  42  Atl.  907;    Talbot  v. 


839 


FIXTURES.  [§•  718 


move  fixtures  is  not  lost  to  the  tenant  so  long  as  his  possession  as  ten- 
ant continues,  but  this  qualification  does  not  include  and  save  the 
right  of  a  tenant  continuing  in  possession  under  a  new  lease.     The 
tenant  is  in  under  a  new  tenancy,  and  not  under  the  old;  and  the 
rights  which  existed  under  the  former  tenancy  and  which  were  not 
claimed  or  exercised  are  abandoned  as  effectually  as  if  the  tenant  had 
actually  removed  from  the  premises  and  after  an  interval  of  time  had 
taken  another  lease  and  returned  to  the  premises.^^    The  reason  of  the 
rule  has  been  stated  as  follows:     "It  results  from  the  terms  of  the 
lease  that  whatever  constituted  a  part  of  the  freehold  at  the  time  the 
lease  was  accepted  must  be  surrendered  at  its  termination,  and  the 
lessee  will  not  be  permitted  to  say  that  part  of  the  premises  leased 
was  in  fact  a  trade  fixture  erected  by  him  under  a  previous  lease,  and 
that  he  has  the  right,  against  the  face  of  his  contract,  to  sever  and  re- 
move it.    To  permit  the  tenant  to  do  this  would,  in  effect,  be  to  per- 
mit him  to  deny  the  title  of  his  landlord  to  part  of  the  demised  prem- 
ises ;  and  if  he  may  deny  his  title  to  a  part,  why  not  to  the  whole  P"^^ 
If  it  is  the  intention  of  the  parties  in  this  or  any  similar  case  that 
the  right  to  remove  fixtures  should  continue,  nothing  is  easier  than 
to  insert  in  the  lease  a  clause  to  that  effect;  and  it  seems  reasonable 
to  infer  from  the  absence  of  such  a  clause  that  it  is  their  intention 
that  this  right  should  no  longer  continue.^ ^    This  rule,  however,  does 
not  apply  when  the  tenant  merely  holds  over  without  a  new  demise 
under  permission  from  the  landlord,  or  in  such  a  way  as  to  raise  an 
implication  of  an  extension  of  the  original  lease.^* 

In  Colorado  the  first  tenancy  has  been  regarded  as  continuous  when 

Cruger,  151  N.  Y.  117,  45  N.  E.  364;  ^^  Loughran  v.  Ross,  45  N.  Y.  792. 

Watriss    v.    First    Nat.    Bank,    124  ''^  Hedderich    v.    Smith,    103    Ind. 

Mass.  571,  26  Am.  R.  694;   Cook  v.  203,  2  N.  E.  315,  53  Am.  R.  509,  per 

Sanitary  Dist.  &c.,  67  111.  App.  286;  Spencer     v.     Commercial     Co.,     30 

Leman   v.    Best,    30    111.   App.    323;  Wash.  520,  71  Pac.  53. 

Marks  V.  Ryan,  63  Cal.  107;  Junger-  "  Carlin  v.  Ritter,  68  Md.  478,  13 

man  v.  Bovee,  19  Cal.  354;   Wright  Atl.  370,  6  Am.  St.  467. 

V.  Macdonnell,  88  Tex.  140,  30  S.  W.  "  Estabrook  v.  Hughes,  8  Neb.  496, 

907;     Williams    v.     Lane,     62     Mo.  1  N.  W.  132;  Wright  v.  Macdonnell, 

App.    66.      The    Maryland    Act    of  88  Tex.  140,  30  S.  W.  907;  Young  v. 

1898,     ch.     92,    provides    that    the  Consolidated  Imp.  Co.,  23  Utah  586, 

right  of  a  tenant  to  remove  fixtures  65   Pac.   720;    Lewis  v.   Ocean   Nav. 

erected   by  him   under   one   demise  &c.  Co.,  125  N.  Y.  341,  26  N.  E.  301; 

shall  not  be  lost  or  in  any  manner  Macdonough    v.    Starbird,    105    Cal. 

impaired   by   reason   of   his   accept-  15,  38  Pac.  510;  Glass  v.  Colman,  14 

ance  of  a  new  lease  of  the   same  Wash,  635,  45  Pac.  310. 
premises  without  any  intermediate 
surrender  of  possession. 


§    719]  FIXTURES.  840 

the  new  lease  -vras  executed  simply  as  the  most  convenient  mode  of 
continuing  the  original  tenancy.  A  finding  that  the  tenant's  occu- 
pancy of  the  premises  after  the  execution  of  the  second  lease  was,  in 
effect,  merely  a  continuation  of  the  old  tenancy  would  not  be  dis- 
turbed under  such  circumstances.^^ 

An  agreement  in  a  lease  authorizing  the  lessee  to  remove  fixtures 
would  have  the  effect  of  extending  his  right  to  do  so  for  a  reasonable 
time  after  the  termination  of  the  tenancy.  It  has  been  held  that  this 
would  not  affect  the  result  on  principle  and  that  by  taking  a  new  lease 
without  any  reservation  of  the  right  of  removal  of  the  fixtures,  the 
lessee  would  lose  the  title  and  right  of  removal.®^  An  oral  agreement 
made  after  a  lease  is  neitlier  more  comprehensive  nor  more  effective 
than  an  agreement  expressed  in  the  lease.  The  result  from  a  renewal 
of  the  lease  would  be  the  same,  as  it  would  amount  to  a  waiver  of  the 
prior  parol  contract. °^ 

§  719.  Time  for  removal  under  agreement. — Wliile  the  common- 
law  right  to  remove  trade  fixtures  must  be  exercised  during  the  term, 
a  similar  privilege  conferred  by  agreement  is  not  so  narrowly  re- 
stricted as  to  the  time  when  the  removal  must  be  effected.  If  a  house 
is  erected  under  a  lease  giving  the  right  of  removal  at  the  expiration 
of  the  term,  the  tenant  is  not  required  to  remove  the  house  during  his 
term,  but  can  occupy  it  during  the  full  term,  and  has  a  reasonable 
time  thereafter  to  remove  it.  If  nothing  appeared  to  prevent,  the  re- 
moval should  be  effected  without  any  considerable  delay ;  at  least,  no 
great  time  should  elapse  before  the  work  of  removal  is  commenced. 
If  the  removal  should  not  be  effected  within  a  reasonable  time  after 
the  term  expired,  the  right  would  cease  and  the  property  become  a 
part  of  the  realty.^^  It  follows  as  the  logical  result  from  this  right 
of  removal  that  the  tenant  is  entitled  to  ingress  and  egress  for  a  rea- 
sonable time  for  the  purpose  of  removing  his  property.  An  express 
clause  giving  a  right  to  remove  "at  the  end  of  the  term"  would  net  be 
inserted  to  limit  the  tenant's  rights  of  removal  but  to  protect  them. 
Nothing  is  said  about  losing  such  rights  if  the  property  should  not  be 
seasonably  removed,  but  on  the  contrary,  it  expressly  says  that  the 
tenant  shall  have  a  right  to  remove  at  the  end  of  the  term,  when,  under 

"Ross  v.  Campbell,  9  Colo.  App.  "Stephens  v.  Ely,  162  N.  Y.  79,  56 
38,  47  Pac.  465.  N.  E.  499. 

'^'Merritt  v.  Judd,  14  Cal.  59,  clt-  =«  Smith  v.  Park,  31  Minn.  70,  16 
ing  Fitzherbert  v.  Shaw,  1  H.  Bl.  N.  W.  490;  Cheatham  v.  Plinke,  1 
258;  Lyde  v.  Russell,  1  B.  &  Ad.  394.     Tenn.  Ch.   576;    Wright  v.   Macdon- 

nell,  88  Tex.  140,  30  S.  W.  907. 


I 


841  FIXTURES.  [§    719 

the  law  as  generally  understood,  unless  otherwise  agreed,  it  would  be 
his  duty  to  remove  before  yielding  up  possession.  Clearly,  if  any 
force  is  to  be  given  to  this  provision,  it  is  that,  after  the  expiration  of 
the  term,  the  tenant  should  be  permitted  ingress  and  egress  for  a  rea- 
sonable time  to  remove  his  property.^^  However,  an  agreement  of  this 
kind  does  not  entitle  the  lessee  to  occupy  the  premises  after  the  expira- 
tion of  the  lease,  that  not  being  necessary  to  enable  him  to  remove  the 
improvements.*^''  In  case  the  removal  be  prevented  by  act  of  the  les- 
sor, or  by  a  provision  of  the  lease  itself,  or  by  an  independent  contract 
with  the  lessor,  the  right  of  removal  would  only  be  suspended,  and 
would  revive  whenever  the  obstruction  was  removed.  So,  if  the  pay- 
ment of  all  rent  were  made  a  condition  precedent  to  the  removal  of 
buildings,  whenever  the  lessee  did  pay,  even  upon  suit  at  the  end  of 
the  lease,  his  right  to  remove  would  become  absolute.®^  And  the  right 
of  removal  would  not  be  lost  if  the  improvements  were  left  at  the 
request  of  the  lessor,  pending  negotiations  for  thtir  purchase  or  rental 
by  him.**^  But  for  the  pendency  of  the  negotiations,  the  tenants 
might  have  removed  the  building  in  controversy  within  the  limit  as 
to  the  time  of  their  right  to  do  so,  and  the  delay  is  occasioned  by  the 
acts  and  representations  of  the  landlord  made  for  the  express  purpose 
of  inducing  them  to  act  as  they  did.  To  allow  the  landlord  to  claim 
the  fixtures  for  such  delay  would  be  obviously  unjust,  and  the  land- 
lord's conduct  would  override  an  express  agreement  that  fixtures  be 
removed  during  the  term.®^ 

If  by  the  terms  of  a  lease,  the  lessee  has  the  right  to  use  and  occupy 
the  improvements  during  the  entire  term  and  to  remove  them  at  the 
end  of  the  term,  to  require  him  to  remove  them  before  the  expiration 
of  his  term  would  violate  his  contract  right  to  use  and  occupy  them  on 
the  premises  until  the  expiration  of  the  term;  to  refuse  him  the  right 
to  remove  them  after  the  expiration  of  the  lease,  provided  he  did  so 
within  a  reasonable  time,  would  cause  him  to  lose  his  property  by 
availing  himself  of  his  contract  right.  Hence,  the  law  implies  his 
right  to  remove  the  improvements  within  a  reasonable  time  after  the 
expiration  of  the  lease.®* 

^*  Davidson  v.  Crump  Mfg.  Co.,  99  ®=  Merriam   v.   Ridpath,   16   Wash. 

Mich.  501,  58  N.  W.  475;   Caperton  104,  47  Pac.  416;  Young  v.  Consoli- 

V.  Stege,  91  Ky.  351,  15  S.  W.  870,  dated  Imp.  Co.,  23  Utah  586,  65  Pac. 

15  S.  W.  84,  12  Ky.  L.  R.  947.  720. 

«"  Caperton  v.   Stege,   91   Ky.   351,  «' Merriam   v.   Ridpath,   16   Wash. 

15  S.  W.  870,  16  S.  W.  84,  12  Ky.  L.  104,  47  Pac.  416. 

R.  947.  "^Caperton   v.   Stege,   91   Ky.   351, 

"  Cheatham  v.  Plinke,  1  Tenn.  Ch.  15  S.  W.  870,  16  S.  W.  84,  12  Ky.  L. 

576.  R.  947. 


I 


! 


§  720]  FIXTURES.  842 

§  720.  Moreover  there  is  good  authority  for  the  position  that  the 
rights  conferred  by  an  agreement  for  removal  are  not  lost  by  the  ac- 
ceptance of  a  new  lease  which  does  not  provide  for  removal.  Of  the 
several  cases"^  reaching  this  conclusion,  the  opinion  in  a  leading  one 
was  delivered  by  Judge  Cooley,  the  original  lease  in  that  case  contain- 
ing a  provision  allowing  the  lessees  thirty  days  after  its  termination 
in  which  to  remove  their  buildings  and  improvements.  The  whole 
question  depends  on  whether  the  fixtures,  at  the  time  the  second  lease 
is  executed,  are  to  be  considered  as  part  of  the  realty,  or  as  personal 
property.  In  the  absence  of  agreement  fixtures  are  abandoned  to  the 
landlord  the  moment  the  tenant  surrenders  the  possession;  but  under 
an  agreement  for  removal  the  tenant  has  a  reasonable  time  after  the 
end  of  the  term  to  remove  them.  This  right  of  removal  by  force  of 
an  agreement  might  continue  after  the  acceptance  of  a  new  lease  by 
the  tenant  just  as  it  might  survive  his  abandonment  of  possession.  So 
that  the  fixtures  and  improvements  might  be  regarded  as  still  belong- 
ing to  the  tenant  and  as  not  coming  within  the  new  lease  at  all.  They 
would  be  in  exactly  the  same  situation  as  if  they  were  erected  anew  on 
the  premises  by  the  tenant  after  the  execution  of  the  new  lease. 
Whereas,  in  the  absence  of  agreement,  there  could  be  no  removal  after 
a  surrender  of  possession  and  none  after  the  acceptance  of  a  new  lease. 
That  the  tenant  must  remove  fixtures  before  surrendering  possession 
is  a  well-established  rule,  and  to  require  the  same  diligence  of  him 
before  doing  what  is  equivalent  to  a  surrender  of  possession,  so  far  as 
the  termination  of  the  original  tenancy  is  concerned,  seems  equally 
fair  and  reasonable.  This  line  of  reasoning  makes  the  tenant's  rights 
depend  on  whether  or  not  the  lease  gave  him  a  right  to  remove  im- 
provements. If  by  express  agreement  between  the  parties  improve- 
ments are  determined  to  be  chattel  property  with  a  right  of  removal 
in  the  tenant  the  new  lease,  when  executed,  would  cover  only  the 
realty.  It  would  no  more  include  those  chattels  than  any  other  per- 
sonal property  belonging  to  the  tenant,  and  upon  the  demised  prop- 
erty at  the  time.  By  taking  the  new  lease  the  tenant's  rights  to  any 
personal  property  belonging  to  him  were  neither  lost  nor  in  anywise 
affected.^^  So  long  as  the  tenant  has  the  right  of  removal  the  fixtures 
are  his,  and  to  assume  that  by  leasing  the  land  upon  which  they  are 
placed,  he  leases  them  of  his  landlord,  is  to  assume  that  he  intends 

«=  Young  V.  Consolidated  Imp.  Co.,  Kingsbury,    39    Mich.    150;    Second 

23  Utah  586,  65  Pac.  720;  Wright  v.  Nat.   Bank   v.   Merrill   Co.,   69   Wis. 

Macdonnell,   88   Tex.   140,   30   S.   W.  501,  34  N.  W.  514. 

907;    McCarthy   v.    Trumacher,    108  ^McCarthy    v.     Trumacher,     108 

Iowa  284,  78  N.  W.  1104;    Kerr  v.  Iowa  284,  78  N.  W.  1104. 


843  FIXTURES.  [§•  721 

to  lease  his  own  property.  Wliether  it  is  or  is  not  the  intention  of  the 
parties  in  any  particular  case  to  make  them  the  property  of  the  land- 
lord, is  the  very  point  to  be  determined.^^  The  general  doctrine  to  be 
gathered  from  the  cases  under  discussion  is  that  a  prior  agreement 
authorizing  a  tenant  to  remove  fixtures  and  improvements  is  sufficient 
to  rebut  any  presumption  that  he  abandons  them  to  the  landlord  by 
taking  a  new  lease.  In  many  of  these  cases  other  circumstances 
strongly  repel  any  such  presumption.  The  actual  intention  of  the 
parties  as  shown  by  their  conduct  and  agreement  should  govern  in 
every  case. 

§  721.  Removal  during  extension  of  term. — The  law  does  not  in 
strictness  require  of  a  tenant  that  he  shall  remove  fixtures  during  the 
term,  but  only  before  he  surrenders  possession,  and  during  the  time 
that  he  has  a  right  to  regard  himself  as  occupying  in  the  character  of 
a  tenant.®^  Though  the  earlier  English  authorities  limit  the  right 
of  removal  to  the  actual  term  of  the  demise,  more  recent  ones  extend 
this  right  during  the  period  during  which  the  tenancy  may  be  con- 
sidered as  continuing.^^  Both  English  and  American  cases  support 
the  conclusion  that,  after  the  term  and  possession  are  surrendered  by 
the  tenant,  unremoved  fixtures  are  to  be  regarded  as  abandoned  to  the 
use  of  the  landlord.  When  a  tenant  quits  possession  without  remov- 
ing a  fixture,  he  is  understood  as  making  a  dedication  of  it  to  his  land- 
lord.'" 

"  Wright  V.   Macdonnell,   88   Tex.  absurd   than   a   rule   of   law   which 

140,  30  S.  W.  907.     In  the  Michigan  should   in  effect  say  to  the  tenant 

case,   Kerr  v.   Kingsbury,  39   Mich,  who  is  about  to  obtain  a  renewal, 

150,  the  reasoning  is  broad  enough  'If  you  will  be  at  the  expense  and 

to  cover  all  renewals,  but  the  facts  trouble,  and   incur  the  loss,   of   re- 

of  the  case  did  not  render  a  decision  moving  your   erections   during   the 

on    that    point    necessary.      Judge  term,    and    of   afterwards    bringing 

Cooley  says,  at  page  154:    "But  why  them     back    again    they    shall     be 

the  right  should  be  lost  when  the  yours;  otherwise  you  will  be  deemed 

tenant,  instead  of  surrendering  pos-  to  abandon  them  to  your  landlord.'  " 

session,  takes  a  renewal  of  the  lease  *^  Penton    v.    Robart,    2    East    88 ; 

is  not  very  apparent.     There  is  cer-  Weeton  v.  Woodcock,  7  M.  &  W.  14; 

tainly  no  reason  of  public  policy  to  Second  Nat.  Bank  v.  O.  E.  Merrill 

sustain  such  a  doctrine;  on  the  con-  Co.,  69  Wis.  501,  34  N.  W.  514. 

trary,  the   reasons  which   saved  to  "^  Tyler  on  Fixtures,  426-7;  Mack- 

the  tenant  his  right  to  the  fixtures  intosh  v.  Trotter,  3  M.  &  W.  184; 

in  the  first  place  are  equally  influ-  Minshall  v.  Lloyd,  2  M.  &  W.  450. 

ential  to  save  to  him  on  a  renewal  '"  Youngblood   v.   Eubank,   68   Ga. 

what    was    unquestionably    his    be-  630;  Reynolds  v.  Shuler,  5  Cow.  (N. 

fore.    What  could  possibly  be  more  Y.)  323;  Loughran  v.  Ross,  45  N.  Y. 


§§  722,  723]  FIXTURES.  844 

The  surrender  of  a  lease  during  the  term  and  the  execution  of  a  new- 
one  for  the  same  period  for  the  purpose  of  releasing  one  lessee  does 
not  constitute  such  a  new  leasing  as  to  amount  to  an  abandonment  of 
the  fixtures  by  the  tenant.  The  new  lease  being  for  the  balance  only 
of  the  term,  at  the  same  rental,  payable  in  monthly  instalments  of 
the  same  amount,  at  the  same  place,  to  the  same  parties,  is  but  a  re- 
iteration of  the  former  lease.  Since  it  does  not  amount  to  a  new  leas- 
ing of  the  demised  premises  the  transaction  has  no  effect  upon  the 
ownership  of  the  trade  fixtures.'^^ 

§  722.  A  lessor  may  by  estoppel  be  precluded  from  claiming  fix- 
tures and  improvements  after  the  renewal  of  a  lease.  By  accepting  a 
chattel  mortgage  on  buildings  erected  by  the  tenant  to  secure  rent,  the 
lessor  admits  that  they  are  the  property  of  the  lessee,  and  for  the  les- 
sor to  renew  the  mortgage  after  a  renewal  of  the  lease  estops  him  from 
claiming  that  the  right  to  remove  improvements  was  lost  by  the  execu- 
tion of  a  new  lease. '^  By  urging  a  new  lessee  to  buy  fixtures  from  an 
outgoing  tenant  a  landlord  is  estopped  to  claim  them  as  part  of  the 
realty,  such  conduct  affirming  the  tenant's  right  to  sell,  and  conse- 
quently his  right  to  remove  fixtures.'^^ 

Where  a  lessee,  instead  of  renewing  his  lease,  elected  to  purchase 
the  premises  as  he  was  entitled  to  do  under  a  clause  in  the  lease,  his 
receipt  of  a  bond  for  title  upon  the  payment  of  certain  sums  in  effect 
made  him  a  mortgagor  of  the  premises  with  a  right  to  perform  the 
conditions  and  acquire  the  legal  title.  By  this  arrangement  the  lessee 
lost  his  right  to  remove  fixtures  which  was  conferred  by  the  lease,  and 
upon  non-fulfillment  of  the  required  conditions  had  only  the  rights 
which  a  mortgagor  in  default  has  against  his  mortgagee,  and  thus  for- 
feited the  fixtures.'^* 

§  723.  A  mortgagee  from  a  tenant  stands  in  no  better  position  than 
the  tenant.  His  right  to  the  property,  as  against  the  landlord,  is  only 
such  as  the  tenant  under  wdiom  he  claimed  had.  It  is  for  him  to  see 
to  it  that  the  building  is  removed  within  the  time  which,  by  the  law 
and  the  terms  of  the  contract,  is  given  to  the  tenant  for  such  a  pur- 

792;  Donnelly  v.  Thieben,  9  111.  App.  "Baker  v.  McClurg,  198  111.  28,  64 

495;   Childs  v.  Hurd,  23  W.  Va.  66,  N.  E.  701,  affirming  96  111.  App.  165. 

9  S.  E.  362;  Carlin  v.  Ritter,  68  Md.  "  Platto  v.  Gettelman,  85  Wis.  105, 

478,  13  Atl.  370,  16  Atl.  301;  Bauern-  55  N.  W.  167. 

Schmidt  &c.  Co.  v.  McColgan,  89  Md.  "  Morrison  v.   Sohn,  90  Mo.  App. 

135,  42  Atl.  907.  76. 

"  Merritt  v.  Judd,  14  Cal.  59. 


845 


FIXTURES.  [§§  724,  725 


pose."  The  same  principle  is  involved  and  the  same  conclusion  should 
be  reached  in  case  a  creditor  levied  an  execution  upon  a  tenant's  fix- 
tures.'^^ 

§  724.  The  term  improvements,  as  used  to  describe  the  additions 
made  to  leased  premises,  is  a  more  comprehensive  word  than  fixtures 
and  necessarily  includes  them  and  such  additions  as  the  law  might 
not  regard  as  fixtures.  Improvements  would  embrace  every  addition, 
alteration,  erection  or  annexation  made  by  the  lessee  during  the  de- 
mised term  to  render  the  premises  more  available  and  profitable  or 
useful  and  convenient  to  them."  A  furnace,  shelves,  counters,  and 
awnings  were  all  improvements  within  the  meaning  of  a  covenant  that 
improvements  should  pass  to  the  landlord  and  he  could  enjoin  their 
removal  by  an  assignee  of  the  lease.'^s  The  same  interpretation  was 
put  upon  a  similar  provision  in  a  case  where  a  new  boiler  was  set  up 
by  a  tenant.  ■^^ 

But  where  a  clause  against  the  removal  of  improvements  proceeds 
to  specify  the  improvements  which  cannot  be  removed,  the  list  is 
limited  to  the  articles  enumerated  and  is  not  extended  by  the  expres- 
sion "and  so  forth"  at  the  end  of  the  list.  The  word  "improvements" 
is  restricted  by  a  videlicet  clause  which  follows  it,  the  office  and  gen- 
eral purpose  of  such  clause  being  to  define  and  particularize  that 
which  before  is  general.  An  "etc"  at  the  end  of  such  clause  does  not 
enlarge  its  scope  further  than  to  indicate  that  articles  directly  con- 
nected with  those  specified  are  included. ^° 

§  725.  Fixtures  erected  by  the  tenant  for  the  purpose  of  carrying 
on  his  trade  are  considered  as  accessory  to  the  enjoyment  of  his  term 
and  the  law  gives  him  a  right  to  remove  them  during  the  continuance 
of  the  term  just  as  if  they  were  personal  property.^^     The  tenant's 

'=  Smith  V.  Park,  31  Minn.  70,  16         "Powell  v.  Bergner,  47  111.  App. 

N.  W.  490;   Free  v.  Stuart,  39  Neb.  33;  Weathersby  v.  Sleeper,  42  Miss. 

220,  57  N.  W.  991;    Jones  on  Chat.  732;     Perkins    v.    Swank,    43    Miss. 

Mort,  §  123.  349;  Raymond  v.  White,  7  Cow.  (N. 

™  Friedlander   v.    Ryder,    30    Neb.  Y.)  319;  Pemberton  v.  King,  2  Dev. 

787,  47  N.  W.  83.  L.    (N.  Car.)    376;    Overman  v.  Sas- 

"  French  v.   Mayor  &c.,   29   Barb,  ser,  107  N.  Car.   432,  12   S.  E.   64; 

(N.  Y.)   363,  s.  c.  16  How.  Pr.    (N.  Lemar  v.  Miles,  4  Watts  (Pa.)  330; 

Y)   220.  Davis  v.  Moss,  38  Pa.  St.  346;   Kile 

'« Parker  v.  Wulstein,  48  N.  J.  Eq.  v.  Giebner,  114  Pa.   St.  381,   7  Atl. 

94,  21  Atl.  623.  154;  Van  Ness  v.  Pacard,  2  Pet.  (U. 

"Agnew  v.  Whitney,  30  Leg.  Int.  S.)  137,  7  L.  ed.  374;  Crane  v.  Brig- 

(Pa.)  312.  ham,  11  N.  J.  Eq.  29;   City  of  Buf- 

^''Loeser  v.  Liebmann,  60  Hun  (N.  falo,  In  re,  1  N.  Y.  St.  742. 
Y.)  579,  14  N.  Y.  S.  569. 


§  725]  FIXTURES.  846 

right  to  remove  trade  fixtures  is  qualified  by  the  restriction  that  he 
must  not  do  serious  damage  to  the  freehold.  This  does  not  reckon 
in  damage  by  reason  of  the  loss  of  the  fixtures  themselves  but  merely 
has  regard  to  the  state  in  which  the  premises  are  left  after  the  fixtures 
are  taken  out.  A  tenant  who,  with  the  consent  of  his  landlord,  an- 
nexes chattels  to  the  land  in  such  manner  that  they  can  be  removed 
without  damage  to  the  realty,  does  not  thereby  part  with  his  property 
in  them,  but  may  remove  them  at  or  before  the  termination  of  his 
lease.^^  Under  this  rule,  chimney  pieces,  wainscot,  grates,  furnaces, 
cider  mills,  buildings  resting  on  blocks,  and  many  other  things  of  like 
nature  have  been  held  to  be  removable  by  the  outgoing  tenant.^^  Slight 
damage  to  the  freehold,  by  reason  of  the  removal,  will  not  bar  the 
tenant's  rights  to  remove  fixtures.  Thus  bowling  alleys  in  a  room 
leased  "for  hall  purposes"  were  held  to  be  trade  fixtures,  which  the 
lessee  could  remove,  though  such  removal  would  injure  the  building 
to  some  extent.  The  tenant  was  described  as  occupying  the  premises 
"for  hall  purposes"  and  the  alley  was  apparently  constructed  for  a 
temporary  use,  incident  and  subordinate  to  his  occupation.®* 

Engines  and  boilers  being  for  the  purpose  of  trade  and  manufac- 
ture would  be  removable  fixtures  except  when  so  annexed  to  the  free- 
hold that  material  injury  would  be  caused  by  their  removal.  A  small 
shed  erected  to  protect  the  engine  and  machinery  would  constitute  a 
part  of  it  and  could  be  removed  by  a  tenant  as  a  trade  fixture  if  the 
engine  could  be.®^ 

A  scenic  railway  and  pavilion  at  a 'pleasure  resort  were  held  to  be- 
trade  fixtures  and  removable  by  the  tenant.  The  scenic  railway  un- 
der consideration  was  a  composite  affair  consisting  of  a  pavilion  with 
a  series  of  undulating,  elevated  tracks  starting  from  and  returning  to 
it,  with  the  requisite  machinery  and  apparatus  and  cars.  It  was  only 
available  for  pleasure  resorts  and  had  no  general  utility.  The  lessee 
arranged  to  have  it  put  upon  the  demised  land  as  one  of  the  agencies 
for  conducting  the  business  of  the  summer  resort  he  intended  to  es- 

^=  Harkey  v.  Cain,  69  Tex.  146,  6  S.  ^  Smith    v.    Whitney,    147    Mass. 

W.  637.  479,  18  N.  E.  229;   Conrad  v.  Sagi- 

*'  Hanrahan  v.  O'Reilly,  102  Mass.  naw  &c.  Co.,  54  Mich.  249,  20  N.  W. 

201;     Doty     v.     Gorham,     5     Pick.  39;    Livingston   v.    Sulzer,    19    Hun 

(Mass.)    487;    Gaffield    v.   Hapgood,  (N.  Y.)  375;  Updegraff  v.  Lesem,  15 

17  Pick.  (Mass.)  192;  Elwes  v.  Maw,  Colo.  App.  297,  62  Pac.  342;   Mason 

3  East  38.  v.  Fenn,  13  111.  525. 

"Hanrahan  v.  O'Reilly,  102  Mass. 
201. 


847  FIXTURES.  [§  726 

tablish.    It  was  to  all  intents  and  purposes  a  trade  fixture  which  the 
lessee-  could  remove  at  the  end  of  his  lease.^^ 

Fixtures  for  a  store  room  made  in  sections,  so  that  they  can  be  re- 
moved, not  intended  by  a  tenant  who  put  them  in  to  become  a  part 
of  the  room,  are  trade  fixtures.^^ 

§  726.  As  a  rule  a  dwelling-house  or  similar  structure  erected  on 
leasehold  land  is  deemed  a  part  of  the  realty  and  a  person  claiming  it 
to  be  personalty  must  show  some  fact  changing  its  character.^*  A 
large  frame  building  resting  on  stone  walls  and-  used  for  the  purpose 
of  curing  tobacco  was  held  not  to  be  a  trade  fixture  which  could  be 
removed  by  the  tenant  at  the  end  'of  his  term.^^  A  tenant  at  will  who 
has  erected  buildings  on  real  estate  without  any  agreement  for  remov- 
ing them  has  no  right  to  or  interest  in  such  improvements.'*'^  If  a 
building  is  erected  on  land  against  the  will  of  the  landowner,  or  with- 
out his  consent,  it  becomes  realty,  and  cannot  be  removed  therefrom 
without  the  commission  of  waste." ^  After  the  expiration  of  a  life 
tenancy  by  death  and  the  termination  of  a  lease  thereunder,  the  lessee 
cannot  remove  buildings  put  on  such  lot  during  the  continuance  of  the 
tenancy.  The  buildings  become  a  part  of  the  realty,  and  go  to  the 
person  entitled  to  the  remainder."^  A  three-story  brick  eating-house 
erected  on  leased  land  under  an  agreement  for  purchase  at  appraised 
value  or  renewal  of  lease  is  not  a  fixture  because  it  cannot  be  removed 
without  the  lessor's  consent.  Buildings  and  improvements  which  can- 
not be  removed  except  at  the  will  of  the  lessor  are  not  fixtures.  Had 
it  been  intended  to  treat  the  buildings  as  chattels,  apt  language  to 
that  effect  could  have  been  incorporated  in  the  lease.  The  improve- 
ments were  intended  to  become  part  of  the  realty."^  In  whatever 
manner  a  fixture  may  be  annexed,  the  lessee  will  have  no  right  to  re- 
move it,  if  the  lease  requires  its  annexation,  and  affords  no  indication 
that  the  connection  was  intended  to  be  temporary.    A  building  erected 

*'  Thompson  &c.  R.  Co.  v.  Young,  *"  Wheeler   &c.    Mfg.    Co.    v.    Kas- 

90  Md.  278,  44  Atl.  1024.  brouck,  68  Iowa  554,  27  N.  W.  738. 

"Roth   V.   Collins,   109   Iowa   501,  "  Bonney  v.  Foss,  62  Me.  248;  Can- 

80  N.  W.  543.  non  v.  Copeland,  43  Ala.  252;   Dart 

»*  Griffin  v.  Ransdell,  71  Ind.  440;  v.  Hercules,  57  111.  446;    Honzik  v. 

Board  &c.  v.  Grant,  118  Cal.  39,  50  Delaglise,  65  Wis.  494.  27  N.  W.  171. 

Pac.  5;  Boyd  v.  Douglass,  72  Vt.  449,  "=  Jones  v.  Shufflin,  45  W.  Va.  729, 

48  Atl.  638.  31  S.  E.  975. 

'» Carver  v.  Gough,  153  Pa.  St.  225,  »^  Fletcher  v.  Kelly,  88  Iowa  475, 

25  Atl.  1124.  55  N.  W.  474. 


§    727]  FIXTURES.  848 

by  a  tenant  pursuant  to  a  covenant  in  his  lease  is  not  removable,  un- 
less the  lease  gives  him  a  right  to  remove  it.^* 

When  a  building  erected  by  a  tenant  is  not  an  isolated  structure 
but  constitutes  an  addition  to  a  house  already  standing  upon  the  land, 
the  right  to  remove  it  may  be  denied  not  merely  on  the  ground  that  it 
is  attached  to  the  freehold  but  also  because  the  improvement  is  so 
annexed  to  the  main  building  that  its  removal  would  greatly  injure 
the  demised  premises.  A  tenant  can  only  remove  such  improvements, 
the  removal  of  which  will  not  materially  injure  the  demised  premises 
or  put  them  in  a  worse  condition  than  they  were  when  he  took  posses- 
sion.^^ 

§  727.  The  strict  rule  that  a  building  becomes  a  part  of  the  realty 
is  relaxed  where  it  appears  that  it  is  put  up  merely  for  the  exercise  of 
a  trade  or  for  the  mixed  purpose  of  trade,  agriculture,  and  manufac- 
turing. This  exception  to  the  general  rule  does  not  depend  upon  the 
character  of  the  structure  or  thing  erected,  or  whether  it  is  built  of 
one  material  or  another,  or  whether  it  is  set  in  the  earth  or  upon  it, 
but  whether  it  is  for  the  purposes  of  trade  or  manufacture,  and  not 
intended  to  become  identified  with  any  part  of  the  land;  this  is  the 
test.^*'  Thus  it  has  been  held  that  a  shaft  house,  and  an  engine,  boiler 
and  other  machinery  placed  upon  mining  premises  for  the  purpose  of 
carrying  on  the  business  were  trade  fixtures  and  removable  by  the  ten- 
ant." 

A  greenhouse  seems  to  be  a  trade  fixture  so  that  a  tenant  erecting 
one  on  leased  premises  would  be  entitled  to  remove  it  at  the  end  of 
the  term,  in  reliance  on  the  doctrine  that  buildings  which  are  erected 
for  the  purpose  of  carrying  on  a  trade  are  excepted  from  the  general 
rule.    The  greenhouse  in  dispute  was  built  on  wooden  foundation,  set 

«*Deane  v.   Hutchinson,   40   N.   J.  Moore  v.  Valentine,  77  N.  Car.  188; 

Eq.  83,  2  Atl.  292;   Pelrce  v.  Grice,  Beers    v.    St.    John,    16    Conn.    322; 

92  Va.  763,  24  S.  B.  392;  Gett  v.  Mc-  Updegraff  v.   Lesem,  15   Colo.   App. 

Manus,    47    Cal.    56;    Mayor    &c.    v.  297,  62  Pac.  342;   Royce  v.  Latshaw, 

Brooklyn  &c.  Ins.  Co.,  41  Barb.  (N.  15  Colo.  App.  420,  62  Pac.  627;  Om- 

Y.)    231;   Boyd  v.  Douglass,  72  Vt.  bony  v.  Jones,   19  N.  Y.  234;    Van 

449,  48  Atl.  638.  Ness  v.  Pacard,  2  Pet.   (U.  S.)   137; 

^»  Friedlander   v.    Ryder,    30   Neb.  Talbot  v.  Whipple,  14  Allen  (Mass.) 

783,  47  N.  W.  83.  177;    Antoni  v.  Belknap,  102   Mass. 

*«  Western   North   Carolina   R.    v.  193. 

Deal.    90    N.    Car.    110;    Pemberton  «^  Updegraff    v.    Lesem,    15    Colo. 

V.  King,  2  Dev.  L.    (N.  Car.)    376;  App.  297,  62  Pac.  342. 


849 


FIXTURES. 


[§•  728 


a  few  inches  into  the  soil,  and  could  be  removed  without  injury  to  the 
Teal  estate.^^ 

A  stable  and  carriage  house  were  declared  to  be  on  the  border  line 
of  buildings  which  can  be  removed  as  trade  fixtures  at  the  end  of  the 
"term.  The  reasons  assigned  for  allowing  removal  were  that  the  lot 
was  vacant  when  the  lease  was  executed  and  the  buildings  could  be 
removed  in  toto  and  the  premises  be  left  in  good  condition,  the  erec- 
tions being  attached  to  the  soil  only  by  their  own  weight.^^ 

Informing  a  lessee  that  he  will  not  be  allowed  to  remove  a  con- 
templated erection,  built  to  replace  one  destroyed  by  fire,  will  pre- 
clude him  from  claiming  it  as  a  trade  fixture  and  the  understanding 
would  be  equally  binding  upon  one  who  purchases  the  building  for 
removal.  In  an  action  by  such  purchaser  against  the  landlord  declara- 
tions of  the  original  lessee  are  admissible  to  show  his  understanding 
that  the  building  became  a  part  of  the  realty.^"** 

§'  728.  Fixtures  used  for  agricultural  purposes  are  generally  not 
included  among  those  which  may  be  removed  by  the  tenant,  but  where 
they  are  used  for  mixed  purposes  of  trade  and  agriculture,  they  are 
held  to  belong  to  the  tenant.  Thus  a  cotton  gin,  engine  condenser 
and  feeder  placed  on  a  farm,  with  the  intention  of  being  removed,  do 
not  become  fixtures  so  as  to  belong  to  the  landlord."^ 

Fruit-trees  and  ornamental  shrubbery  grown  upon  premises  leased 
for  nursery  purposes  would  probably  be  held  to  be  personal  property 
as  between  landlord  and  tenant,  though  there  is  neither  authority  nor 
reason  for  saying  that,  as  between  vendor  and  vendee,  such  trees  and 
.shrubbery  would  not  pass  with  a  sale  of  the  land.^°- 


"^  Royce  v.  Latshaw,  15  Colo.  App. 
297.  62  Pac.  627. 
,  "» Firth  v.  Rowe,  53  N.  J.  Eq.  520, 

1/^32  Atl.  1064. 

^""Linahan  v.  Barr,  41  Conn.  471. 


"'McMath  v.  Levy,  74  Miss.  450, 
21  So.  9,  523;  Tate  v.  Blackburne, 
48  Miss.  1;  Overman  v.  Sasser,  107 
N.  Car.  432,  12  S.  E.  64. 

'"-  Smith  V.  Price,  39  111.  28. 


Jones  L.  &  T.— 54 


I 


INDEX. 


I 


[References  are  to  Sections.'] 
ABANDONMENT, 

of  itself  no  discharge  of  assignee,  456. 

not  a  surrender,  539. 

no  duty  on  lessor  to  relet  after,  539. 

entitles  lessor  to  resume  possession,  539. 

repairs  by  landlord  on  abandoned  premises,  548,  549. 

reletting  of  abandoned  premises,  549. 

notice  of  continued  liability  to  tenant,  550. 

followed  by  reentry,  547. 

of  crops  gives  landlord  right  to  harvest,  547. 

right  of,  for  lessor's  failure  to  repair,  673. 

ABATEMENT  OF  RENT, 

not  allowed  after  fire,  675. 

origin  and  basis  of  rule,  675. 

effect  of  seal,  675. 

injury  by  tempest  and  flood,  675. 

failure  of  water  supply,  675. 

acts  of  landlord  after  destruction,  675. 

destruction  prior  to  commencement  of  term,  675. 

application  of  insurance  money  after  fire,  676. 

destruction  of  entire  subject  matter  of  lease,  677. 

when  interest  in  land  passes  to  lessee,  677. 

voluntary  advance  payment  of  rent,  677. 

Kentucky  rule,  677. 

exceptional  Nebraska  doctrine,  678. 

destruction  by  public  enemies,  678. 

agreements  for  abatement  in  case  of  destruction,  679. 

lease  not  terminated  under,  679. 

election  to  disregard  injuries,  679. 

what  constitutes  a  "casualty,"  679. 

lessor's  covenant  to  repair  does  not  abate  rent,  679. 

taking  on  eminent  domain,  680. 

tearing  down  dangerous  building,  680. 

statutory  modifications  of  common  law  rule,  681. 

ACCEPTANCE, 

of  lease  by  lessee  binds  him  before  entry,  77,  79. 
presumption  of,  from  beneficial  nature,  79. 
question  of,  decided  by  jury,  79. 

851 


852  INDEX. 

[References  are  to  Sections.'] 
ACCEPTANCE— Continued. 

of  assignment  by  assignee  necessary,  427,  457. 
of  rent  from  assignee  discharges  lessee  when,  452. 
of  key  by  landlord  as  proof  of  surrender,  548. 

ACCOUNT,  ACTION  OF, 

allowed  against  tenant  for  crop  rent,  656. 

between  tenants  in  common  replaced  by  assumpsit,  657. 

ACKNOWLEDGMENT  OF  LEASES, 
unnecessary  between  parties,  71. 
necessary  to  entitle  instrument  to  record,  71. 
rule  in  Ohio  and  Maryland,  72. 
rights  of  third  parties,  73. 

ACT  OF  GOD, 

as  excuse  for  holding  over,  208. 

ADMINISTRATORS, 

See  Executors  a>-d  Administbatobs. 

ADVERSE  HOLDING, 

raises  no  inference  of  tenancy,  2. 

changed  to  tenancy,  2. 

what  constitutes  holding  adverse,  85. 

overt  act  necessary  to  change  tenancy  into,  696. 

jury  decides  what  constitutes,  by  tenant,  696. 

attornment  to  stranger  does  not  create,  709. 

ADVERTISEMENT, 

on  wall  not  a  leasing,  40. 

right  to  place,  on  outside  wall,  108. 

not  a  breach  of  covenant  against  sub-letting,  468. 

AGENTS, 

bind  undisclosed  principal,  81. 

mode  of  execution  of  lease  by,  81. 

recitals  regarded  as  mere  description,  81. 

infant  cannot  lease  through  agent,  95. 

authority  in  writing  required  by  statute  of  frauds,  157. 

ratification  of  lease  by,  157. 

undisclosed  principals,  158. 

lease  by  unauthorized,  does  not  create  tenancy  at  will,  181, 

notice  to  quit  addressed  to,  263. 

authority  of,  to  give  notice  to  quit,  265. 

grantor  receiving  rent  as,  for  grantee,  426. 

executing  assignment  for  undisclosed  principal,  437. 

action  for  rent  on  lease  executed  by,  660. 

AGREED  STATEMENT  OF  FACTS. 

inferences  not  to  be  drawn  from,  14. 


INDEX.  853 

[Refereyices  are  to  Sections.] 
AGREEMENTS  COLLATERAL  TO  LEASE, 
valid  when,  130. 

contracts  partly  in  writing  and  partly  by  parol,  130. 
omitted  term  in  written  lease  supplied  by  parol,  130. 
presumption  that  oral  negotiations  merge  in  writing,  130. 
oral  agreements  not  within  statute  of  frauds,  131. 

partly  within  statute  of  frauds,  131. 
agreement  must  be  collateral,  132. 
what  agreements  are  collateral,  133. 
time  for  performance  the  test,  133. 
rule  in  England,  134. 

subsequent  agreements  reducing  rent,  135. 
acceptance  of  reduced  amount  as  ratification,  135. 
grantee  of  lessor  not  bound,  135. 
what  constitutes  sufficient  consideration,  136. 
time  for  performance  enlarged  by  parol,  136. 
execution  of  new  lease  operates  as  surrender,  137. 
parol  agreement  for  holding  over,  137. 

AGREEMENTS  TO  LEASE, 

essentials  of  valid  contract,  137a. 

binding  though  formal   instruments  are  to  follow,  137a. 

fair  rent  a  sufficient  specification,  137a. 

statement  of  gross  sum  as  rent,  137a. 

contract  for  ordinary  covenants  too  vague,  137a. 

specific  performance,  138. 

lost  by   laches  when,    138. 

premature  suit  for,  139. 
what  constitutes  a  breach  of  agreement,  139. 
unconditional  refusal  waives  strict  compliance,  139. 
measure  of  damages  for  breach,  140. 
loss  of  profits,  140. 
expenses  incurred,  140. 
unnecessary  loss  must  be  prevented,  140. 
lease  or  agreement  to  lease,  141. 

question  of  construction  as  to  intention  of  parties,  141. 
defects  in  form,  141. 

difference  in  effect  of  two  kinds  of  contracts,  141. 
test  of  intention,  142. 

execution  of  further  instrument,  142,  143. 
agreements  depending  on  a  condition,  143,  145. 
"agree  to  let"  apt  words  of  present  demise,  144. 
effect  of  transfer  of  possession,  146. 

valid  as  evidence  showing  actual  demise,  146. 

showing  waiver  of  formal  lease,  146. 

ALABAMA, 

statute  as  to  cropping  contracts,  56. 
leases  limited  to  twenty  years.  111. 
statute  as  to  part  performance,  161. 


854  INDEX. 

[References  are  to  Sections.'] 
ALASKA, 

statute  as  to  notice  to  quit,  277. 

ALIENATION, 

by  either  party  ends  tenancy  at  will,  186. 
mode  and  purpose  of  transfer  immaterial,  187. 
notice  of  transfer  necessary,  188. 

AGRICULTURAL  FIXTURES, 

See  FixTUBES. 
AIR, 

See  Light  A^•D  Air. 
ALTERATION, 

of  lease  renders  it  void  when,  62. 

when  lease  is  executed  in  duplicate,  129. 

in  amount  of  rent  and  mode  of  payment,  663 

ALTERATIONS  IN  LEASED  PREMISES, 
covenant  against,  380. 
injunction  against,  381. 
constitute  waste,  632. 
unless  authorized,  632. 
rule  in  the  United  States,  633. 

APPORTIONMENT  OP  RENT, 

leases  of  real  and  personal  property,  10. 
none  of  liability  after  assignment  as  to  time,  422,  455. 
of  liability  as  to  assignee  of  part,  460. 
determined  by  jury,  460. 

transfer  of  undivided  interest,  460. 
permitted  as  to  estate  but  not  as  to  time,  667. 
no  redress  for  lessor  ending  tenancy  before  rent  day,  667. 
tenancy  ended  by  entry  of  mortgagee,  667. 
tenancy  at  will  ended  by  transfer,  667. 
apportionment  is  for  benefit  of  owner  of  rent,  667. 
on  sale  of  part  of  reversion,  668. 
on  death  of  lessor,  668. 
wrongdoer  cannot  claim  benefit  of,  668. 
transferee  may  sue  in  covenant,  668. 
jury  the  proper  tribunal  to  make,  668. 
transfer  of  part  of  leasehold  as  occasion  for,  669, 
surrender  of  part  by  lessee,  669. 
eviction  by  title  paramount,  669. 
basis  for,  value  not  quantity  assigned,  669. 

possessory  right  not  actual  possession,  699. 
lease  covering  land  and  chattels,  669. 
past  due  rent  never  apportioned,  670. 

not  discharged  by  quitclaim  deed,  670. 
obligation  to  pay  rent  not  apportioned,  670. 
South  Dakota  statute  as  to  mortgage  foreclosure,  670. 
statutory  provisions  as  to  apportionment,  671. 


i 


INDEX.  855 

[References  are  to  Sections."] 
APPRAISAL, 

of  improvements  on  leased  premises,  379. 

distinguished  from  arbitration,  379. 

after  assignment  conducted  by  assignee,  450. 

APPURTENANCES, 

what  passes  as,  in  a  lease,  104,  105. 

ARBITRATION, 

award  of,  cannot  create  tenancy,  4. 
fixing  rent  in  renewal  lease  by,  346. 

ARIZONA, 

statute  as  to  notice  to  quit,  278. 
forfeiture  for  non-payment  of  rent,  506. 

ARKANSAS, 

statute  as  to  notice  to  quit,  279. 
forfeiture  for  tion-payment  of  rent,  507. 
purchase  of  tax  title  by  tenant,  690. 

ASSAULT  AND  BATTERY, 

action  of,  by  tenant  against  landlord,  228. 

ASSESSMENTS, 

See  Taxes  and  Assessments. 
ASSIGNEE, 

of  reversion  entitled  to  collect  rent,  422. 

how  distinguished  from  sub-tenant,  445. 

double  remedy  against  lessee  and  assignee,  447. 

recovery  discharges  both  pro  tanto,  448. 

proper  party  to  act  in   appraisement,   450. 

liable  for  money  paid  in  his  behalf  by  lessee,  451. 

bound  by  covenants  running  with  land,  455. 
extent  and  basis  of  liability,  455. 
no  apportionment  of  rent  in  favor  of,  455. 

assignment  over  discharges,  when,  455,  456. 

liability  of,  to  pay  taxes,  455. 

sufficiency  of  assignment  over,  456. 

conveyance  of  equitable  title,  456. 
mere  abandonment  insufficient,  456. 

acceptance  by  assignee  essential,  457. 

devisee  not  liable  as,  until  acceptance,  457. 

actual  entry  unnecessary,  458. 

assignment  by  way  of  mortgage,  458. 

doctrine  in  Missouri  and  New  York,  458. 

possession  necessary  against  third  persons,  458 

assignees  of  the  reversion,  459. 

of  part  of  leasehold  liable  for  pro  rata  share  of  rent,  460. 

of  undivided  interest  subject  to  same  rule,  460. 

assumption  by,  of  liability  on  covenants,  462. 

what  constitutes  such  assumption,  463. 

estoppel  in  favor  of  assignee,  473. 


856  INDEX. 

[References  are  to  Sections.'\ 
ASSIGNMENT  OF  LEASE, 
by  infant  lesse*^,  97. 

of  illegal  lease  does  not  make  it  valid,  124. 
by  parol  invalid,  151. 

part  performance  by  transfer  of  possession,  151. 
right  of  lessor  to  assign  his  interest,  421. 
attornment  not  necessary,  421. 
rule  in  England  as  to  attornment,  421. 
rent  follows  the  reversion,  422. 
no  apportionment  of  liability  as  to  time,  422. 
payment  of  rent  to  lessor  after  assignment  of  reversion,  422. 
effect  of  transfer  by  sale  on  execution,  422. 
Illinois  statute  as  to  attornment,  423. 
mode  of  transferring  reversion,  424. 
transfer  of  lease  alone,  424. 
transfer  of  leases  in  fee,  424. 
exception  of  rent  in  grant  of  reversion,  425. 
attornment  defined,  426. 
attornment  by  payment  of  rent,  426. 
covenant  in  assignment  to  deliver  possession,  427. 
transfer  of  possession  by  symbol  unnecessary,  427. 
acceptance  by  transferee  of  tenant,  427. 
merger  on  assignment  to  lessee,  428. 
mortgage  of  leasehold  to  lessor,  428. 
legal  interest  necessary  to  merger,  428. 
undivided  interests  produce  merger  when,  428. 
sale  on  partition,  428. 
effect  of  sub-tenancy  on  merger,  429. 
liability  of  sub-tenants  on  covenants,  429. 
English  statutory  provision  covering  such  cases,  429. 
election  not  to  have  merger  take  place,  429. 
assignment  of  lessor's  interest  under  lease  without  a  transfer  of 

any  rights  in  the  reversion,  430. 
action  of  debt  for  rent  in  such  case,  430. 
assignment  of  rent  already  due,  430. 
assignment  of  crop  rent,  430. 
equitable  lien  conferred  by  assignment,  430. 
transfer  of  lessee's  interest,  431. 
leases  at  will  and  from  year  to  year,  431. 
injunction  against  assignment,  431. 
collateral  agreements  against  sub-letting,  431. 
lease  upon  shares  not  assignable,  431. 

condition  in  assignment  against  future  assignments  invalid,  431. 
assignment  of  renewal  right,  431. 
statutory  provisions  against  assignment,  432. 
in  Kansas,  432. 
in  Missouri,  432. 
in  Kentucky,  432. 
Georgia  statutes,  433. 


INDEX.  857 

[References  are  to  Sections.'] 
ASSIGNMENT    OF    1.EASE— Continued. 
Texas  statute,  434. 

no  tenancy  between  assignee  and  assignor,  435. 
caveat  emptor  is  the  rule  in  sale  of  leasehold,  435. 
remedies  of  assignee  for  eviction,  435. 
what  constitutes  fraud  in  assignment,  435. 
implication  of  covenants  in  assignment,  435. 
introduction  of  express  covenants,  435. 
what  passes  on  an  assignment,  436. 
form  of  assignment  immaterial,  437. 
form  of  assignment  by  agent,  437. 
deed  in  fee  effective  as  assignment,  437. 
indorsement  on  back  of  lease,  438. 
"sold"  equivalent  to  "assigned,"  438. 
signing  and  sealing  blank  paper  no  assignment,  438. 
delivery  essential,  438. 
compliance  with  contract  to  assign,  438. 
condition  against  assignment,  effect  of,  438. 
seal  necessary  when,  439. 

statute  of  frauds  covers  assignments,  151,  440. 
part  performance  of  parol  assignment,  440. 
parol  assignment  of  parol  lease,  441. 
implication  of  assignment  from  occupation,  442. 
rebutting  this  presumption,  442. 
receiver  in  charge  not  an  assignee,  443. 
sale  on  execution  operates  as  assignment,  444. 
decree  of  sale  on  lien  judgment,  444. 
distinction  between  assignee  and  sub-tenant,  445. 
under-lease  for  full  term  is  assignment,  446. 
technical  words  unnecessary,  446.  ♦ 

instrument  taking  effect  both  as  lease  and  assignment,  446. 
right  of  reentry  a  mere  chose  in  action,  446. 
express  covenants  bind  after  assignment,  447. 
implied  covenant  discharged  by  assignment,  447. 
double  remedy  open  to  lessor  after  assignment,  447. 
absolving  lessee  from  express  covenants,  448. 
express  continuance  of  lessee's  liability,  448. 
effect  of  assent  to  second  assignment,  448. 
lessee  discharged  by  authorized  change  in  mode  of  use,  448. 
lessee  becomes  surety  for  assignee,  449. 
liability  of  lessee  not  affected  by  duration  of  term,  450. 
lessee  can  recover  amounts  paid  from  assignee,  451. 
not  restricted  to   immediate  assignee,   451. 
liability  of  assignee  under  forbidden  assignment,  451. 
liability  on  covenants  to  repair  and  maintain,  451. 
discharge  of  lessee  by  acceptance  of  rent  from  assignee,  452. 
what  constitutes  an  express  covenant  to  pay  rent,  452. 
surety  for  lessee  not  discharged  by  assignment,  453. 
lessor's  liability  on  covenants  after  assignment,  454. 


858  INDEX. 

[References  are  to  Sections.'] 
ASSIGNMENT    OF    LEASE— Continued. 

assignee  is  bound  by  express  covenants,  455. 
arises  without  express  assumption,  455. 
privity  of  estate  and  privity  of  contract,  455. 
no  apportionment  of  liability  for  rent  or  taxes,  455. 
extent  of  sub-tenant's  liability,  455. 
assignee  discharged  by  assignment  over,  456. 
absolute  transfer  necessary  for  this  purpose,  456. 
acceptance  of  second  assignment  necessary,  456. 
equitable  assignment  insufficient,  456. 
unrecorded  deed  of  assignment,  456. 
mere  abandonment  not  sufficient,  456. 
liability  for  prior  breaches  continues,  456. 
assignee  must  accept  assignment,  457. 
devisee  must  accept  leasehold,  457. 
assignees  by  operation  of  law,  457. 
actual  entry  by  assignee  unnecessary,  458. 
liability  rests  on  privity  of  estate,  not  on  occupation,  458. 
assignments  by  way  of  security,  458. 
lienor  is  not  assignee,  458. 
rights  of  mortgagee  of  reversion,  459. 

liability  of  assignee  of  reversion  released  by  second  transfer,  459. 
pro  rata  liability  of  assignee  of  part,  460. 
apportionment  by  jury,  460. 
transfer  of  undivided  interest,  460. 
liability  on  covenant  to  deliver  up  in  that  case,  460. 
general  assignment  includes  leasehold  when,  461. 
assumption  of  covenants  by  assignee,  462. 
basis  of  liability  to  lessor,  462. 
consideration  for  assumption,  462. 
what  constitutes  an  assumption  of  covenants,  463. 
taking  deed  "subject  to"  some  condition,  463. 
sufficient  for  assignee  to  "assume"  lease,  463. 
Condition  against  assignment  and  subletting,  464-495. 
not  a  usual  provision  in  lease,  464. 
construction  of  such  provisions,  464. 
intention  of  parties  controls,  464. 
provision  for  reentry  valid  against  sub-tenants,  464. 
such  provision  affects  value  of  lease,  464. 
forbidden  assignment  not  void  but  voidable,  465. 
option  rests  with  lessor,  465. 
waiver  of  ground  for  forfeiture,  465. 
transfer  by  operation  of  law  not  a  breach,  466. 
under-letting  not  a  breach  of  covenant  not  to  assign,  467. 
assignment  is  breach  of  covenant  not  to  under-let,  467. 
what  constitutes  a  breach  of  such  covenant,  468. 
changes  in  business  relations  as  breach,  469. 

rule  in  Dumpor's  case  as  to  waiver  of   condition  against  assign- 
ment, 470. 


INDEX.  859 

[References  are  to  Sections.} 
ASSIGNMENT    OF    -LEASE— Continued. 

considered  as  law  in  United  States,  471. 
effect  of  special  license  to  assign  or  sub-let,  472. 
waiver  of  right  to  forfeit  for  assignment,  473. 
effect  of  acceptance  of  rent,  473. 
though  contrary  to  condition,  voidable  only,  495. 
not  invalid  between  parties,  495. 

ASSUMPSIT, 

See  Use  and  Occupation,  and  Rent. 

ASSUMPTION  OF  COVENANTS, 
by  assignee,  462. 
what  constitutes,  463. 
not  necessary  to  create  liability,  455. 

ASSUMPTION   OF  RISK, 

from  defects  by  tenant,  576. 

ATTORNEY, 

stipulation  of  fee  for,  valid,  64. 
■  Indiana  statute  against  conditional  fee,  64. 

ATTORNMENT, 

not  necessary  in  United  States,  421. 

rule  in  England,   421. 

Illinois  statute  as  to  attornment,  423. 

definition  of,  426. 

payment  of  rent  constitutes,  when,  426. 

to  stranger  an  act  of  disclaimer,  476. 

to  adverse  claimant  not  permissible,  706,  707. 

to  stranger  after  threat  of  eviction,  707. 

unauthorized  confers  no  constructive  possession,  709. 

to  holder  of  tax  title,  709. 

statutory  provisions  as  to  attornment  to  strangers,  709. 

AWNING, 

tenant  injured  by  fall  of,  579. 

San  Francisco  ordinance  in  regard  to,  601. 

tenant's  right  to  avail  himself  of  such  ordinance,  601. 

liability  for,  in  front  of  tenement,  613. 


B 
BARGAIN  AND  SALE, 

lease  taking  effect  as,  executes  possession  in  lessee,  17. 

BAWDY  HOUSE, 

letting  adjoining  tenement  as,  360. 

BOARDER, 

not  generally  a  tenant,  23,  24. 


860  INDEX. 

[References  are  to  Sections.l 
BEQUEST, 

operating  as  assignment,  437. 

BOILER, 

tenant  injured  by  explosion  of,  579. 

explosion  of,  a  casualty,  679. 

a  fixture  removable  by  tenant  when,  725. 

BOWLING  ALLEY, 

removable  as  fixture,  725. 

BUILDING, 

leased  eo  nomine,  includes  what,  102. 

separate  rooms  in  tenements,  102. 

no  continuing  breach  of,  covenant,  501. 

liability  for  collapse  of,  609. 

not  removable  as  fixture,  726. 

when  considered  trade  fixture,  727. 


C 

CALIFORNIA, 

right  to  lease  property  in  possession  of  another,  85. 

statute  as  to  yearly  tenancy,  231. 

statute  for  notice  to  quit,  280. 

statute  as  to  repairs  by  lessor,  406. 

forfeiture  for  non-payment  of  rent,  508. 

statute  as  to  interpleader,  670. 

statute  as  to  lessor's  duty  to  repair,  672. 

statute  as  to  attornment  to  stranger,  705. 

CANCELLATION  AND  DESTRUCTION  OF  LEASE, 
not  a  valid  mode  of  effecting  a  surrender,  541. 

CARPETING, 

of  passageway,  defect  in,  621. 

CASE, 

See  Trespass  on  the  Case. 
"CASUALTY," 

defined,  679. 

effect  of  excepting,  from  covenant  to  rebuild,  405. 

CAVEAT  EMPTOR, 

rule  of,  applies  on  assignment,  435. 
applies  on  letting  of  premises,  576. 

CESSPOOL, 

considered  as  nuisance,  579. 

CESTUI  QUE  TRUST, 

See  Trustee. 


I 


I 


INDEX.  861 

[References  ore  to  Sections.] 
CHATTELS, 

let  for  a  term,  rights  of  parties,  10. 
joint  lease  of  land  and  chattels,  10. 
apportionment  of  rent  in  such  case,  10,  669, 

CHOSE  IN  ACTION, 

not  assignable,  658. 

COAL  HOLE, 

liability  for  injury  caused  by  defective,  600. 

COMMENCEMENT  OF  LEASE, 

See  Lease;   Duration  of  Term. 

COMMUNITY  LANDS, 
right  to  lease,  87. 
Washington  statute  as  to,  88. 

COLORADO, 

statute  as  to  notice  to  quit,  281. 
forfeiture  for  non-payment  of  rent,  509. 

COLLATERAL  AGREEMENTS, 

See  Agreements  Collateral  to  Lease. 
against  assignment,  431. 

CONDITION, 

precedent  distinguished  from  independent  agreement,  324. 

covenant  distinguished  from  condition,  326. 

conditional  limitation,  327,  482. 

validity  of  condition,  482. 

definition,  482. 

necessity  for  entry,  483. 

what  equivalent  to  entry,  485. 

construction  of  condition,  486. 

not  enforced  in  equity,  486,  490. 

relief  against  breach  of,  491,  492. 

CONDITIONAL  LIMITATION, 

applicable  during  holding  over,  202. 
what  constitutes,  327. 
distinguished  from  condition,  482. 

CONNECTICUT, 

statute  as  to  yearly  tenancy,  232. 
statute  as  to  notice  to  quit,  282. 
forfeiture  for  non-payment  of  rent,  510. 
abatement  of  rent  under  statute,  681. 

iNSIDERATION, 
for  lease,  65. 

Illinois  statute  authorizing  plea  of  want  of  consideration,  65. 
for  agreement  reducing  rent,  136,  137. 


862  INDEX. 

[References  are  to  Sections.} 
CONSTRUCTION  OF  LEASES, 

to  be  declared  by  court,  66. 
instrument  to  be  construed  as  a  whole,  67. 
custom  of  country  not  admissible  to  vary,  68. 
inconsistent  and  contradictory  clauses,  69. 
weight  of  written  and  printed  provisions,  69. 
erasure  of  printed  clause,  69. 
meaning  of  term  "relet,"  69a. 
instruments  construed  together,  69a. 
instrument  to  be  construed  as  a  whole,  322. 
words  of  indenture  to  be  attributed  to  whom,  322. 
reservation  of  crop  rent  construed,  322. 
motive  of  covenantor  immaterial,  322. 

CONTINGENT  LIMITATION, 
of  lease  valid,  114. 
sale  of  premises,  114. 
damages  payable  under  agreement,  114. 
"used  for  railroad  purposes"  defined,  114. 
happening  of  contingency,  115. 
limitation  distinguished  from  condition,  115. 
"life  of  building"  defined,  115. 

CORPORATIONS, 

lease  by,  not  under  seal,  74. 
mode  of  executing  leases  by,  82. 

CO-TENANCY, 

See  Tenants  in  Common. 
in  crops  on  demised  premises,  54. 

COVENANT,  ACTION  OF, 

on  deed  poll,  80,  318. 

no  previous  demand  necessary,  503. 

compared  with  action  of  debt,  650. 

lies  only  on  privity  of  contract,  658. 

such  privity  transferred  by  assignment,  658. 

COVENANTS   IN  LEASES, 

nature  of  a  covenant,  318. 
deed  poll  and  indenture,  318. 
created  without  technical  words,  319. 
interpreted  to  carry  out  intention  of  parties,  319. 
as  to  payment  of  royalty,  319. 
provision  for  right  of  way,  319. 
form  of  execution  by  joint  covenantors,  320. 
express  and  implied  distinguished,  321. 
instrument  to  be  construed  as  a  whole,  322. 

words  in  indenture  to  be  taken  as  words  of  party  to  whom  they  be- 
long, 322. 
reservation  of  crop  rent  construed,  322. 


INDEX.  863 

[References  are  to  Sections.^ 
COVENANTS    IN    LEASES— Continued. 

motive  of  covenantor  immaterial,  322. 

dependent,  concurrent  and  independent  covenants,  323,  673. 
conditions  precedent  and  independent  agreements,  324. 
no  injunction  against  breach  of  independent  covenants,  325. 
distinction  between  covenant  and  condition,  326. 
wnat  constitutes  a  conditional  limitaton,  327. 
runnng  of  covenants,  328. 
rule  in  Spenser's  case,  329. 

as  to  personal  matter  does  not  bind  assigns,  330. 
for  quiet  enjoyment  held  to  run,  330. 
affecting  mode  of  occupation  and  enjoyment  run,  331. 
to  buy  improvements  run,  332. 
to  purchase  chattels  do  not  run,  332. 

no  liability  for  prior  breaches  of  continuing  covenant,  332. 
guaranty  for  rent  collateral,  333. 
to  pay  money  in  lieu  of  dower  do  not  run,  333. 
running  of  covenants  after  breach,  334. 
what  constitutes  a  continuing  covenant,  334. 
to  insure  do  not  run,  335. 
For  renetcal  of  lease,  336-348. 

privilege  of  renewal  and  extension  usual  and  valid,  336. 

lease   for   one   year  with   provision   for  continuance  from  year  to 

year,  336. 
distinction  between  stipulation  to  renew  and  one  to  extend  term, 

337. 
whether  general  provision  to  renew  calls  for  new  lease,  338. 
notice  required  before  end  of  original  term,  339. 
no  notice  necessary  in  case  of  extension,  340. 
compliance  with  provisions  as  to  notice,  340,  342. 
effect  of  holding  over,  340. 

payment  of  rent  as  evidence  of  extension,  340. 
right  of  lessor  to  call  for  election,  341. 
effect  of  statement  of  intention  by  tenant,  341. 
sufficiency  of  the  covenant,  343. 
perpetual  renewal  not  ordinarily  implied,  343. 
not  applicable  to  sub-division  of  property,  344. 
parties  bound  and  parties  entitled,  345. 
fixing  rent  in  renewal  lease  by  arbitration,  346. 
conditional  covenant  to  renew,  347. 
happening  of  contingency,  348. 
For  quiet  enjoyment,  349-371. 
when  implied,  349. 

express  covenant  excludes  implied  ones,  350. 
special  and  general  express  covenants,  350. 
statutory  provisions  against  implied  covenants,  351. 
scope  of  covenant  for  enjoyment,  352. 
runs  with  land,  352. 
no  covenant  implied  against  assignor,  352. 


864  INDEX. 

[References  are  to  Sectioiis.l 
COVENANTS    IN    LEASES— Continued. 

implied  covenant  against  lessor's  own  acts,  353. 

no  breach  without  eviction,  354.  * 

what  constitutes  an  eviction,  354,  355.  >^ 

actual  and  constructive  eviction  compared,  355,  356. 
waiver  of  constructive  eviction,  356. 
physical  expulsion,  357. 

entry  by  landlord  under  claim  of  privilege,  358. 
interference  with  light  and  air,  359. 
nuisance  on  adjoining  premises,  360. 
no  covenants  against  acts  of  wrong-doers,  361. 
taking  under  eminent  domain,  362. 
outstanding  title  alone  no  eviction,  363. 
serving  notice  to  quit,  363. 
eviction  by  judgment  of  law,  363. 
eviction  suspends  rent,  364. 
effect  of  partial  eviction  on  rent,  365. 
duty  of  leseor  to  give  possession  of  premises,  366. 
rule  in  England,  367. 

right  of  lessee  to  obtain  possession  by  suit,  367. 

effect  of  outstanding  right  of  possession  in  another,  367a.  r 

right  of  action  for  eviction,  368. 
rule  of  damages  in  such  actions,  369-371. 
In  regard  to  buildings  and  improvements,  372-381. 
when  to  be  performed,  372. 
right  to  perform  during  renewal,  372. 
liability  of  landlord  for  value  of  improvements,  373. 
right  of  tenant  to  remove  improvements,  373. 
agreements  for  purchase  of  buildings  by  landlord,  374. 
rights  under  alternative  option  to  purchase  or  renew,  375. 
improvements  considered  as  part  of  realty,  376. 
covenants  to  buy  improvements  run  with  land,  377. 
payment  into  court  in  case  of  disputed  claim,  377. 
assignment  of  right  to  remove,  377. 
mechanics'  lien  for  improvements,  378. 
proceedings  for  appraisal  of  improvements,  379. 
distinction  betv/een  appraisal  and  arbitration,  379. 
covenants  against  alterations,  380. 
injunction  against  alterations,  380. 
tenant's  right  to  light  and  air,  381. 
covenant  not  to  build  on  adjoining  close,  381. 
Covenants  restricting  use  of  premises,  382-386. 
validity  of  restriction,  382. 
rights  in  absence  of  restriction,  382. 
construction  of  such  covenant,  382. 
what  constitutes  such  a  covenant,  383. 
effect  of  recitals  in  lease,  383. 
breach  of  such  covenant  occurs  when,  383. 
prohibited  use  enjoined,  381. 


INDEX.  865 

{References  are  to  Sections.'] 
COVENANTS    IN    'LTSAS'ES— Continued. 

covenant  must  be  express  in  that  case,  384. 

injunction  to  stay  waste,  384. 

for  personal  occupation  not  a  usual  covenant,  385. 

domestic  relations  of  tenant  a  collateral  matter,  385. 

agreement  not  "to  make  or  suffer"  an  unlawful  use,  386. 
Covenants  as  to  sale  of  leased  premises,  387-388. 

valid  and  enforceable,  387, 

nature  of  the  obligation,  387. 

time  of  performance  of  sale,  387. 

righc  to  end  term  by  sale,  388. 

right  of  lessee  to  quit  on  sale,  388. 

bona  fide  sale  required,  388. 
Covenants  for  insurance,  389,  390. 

extent  of  lessee's  liability  under,  389. 

mode  of  effecting  insurance,  389. 

such  covenant  runs  with  the  land,  389. 

measure  of  damage  for  failure  to  insure,  390. 
Covenants  for  repairs,  391-410. 

regarded  as  a  usual  covenant,  391. 

sufficiency  of  oral  undertaking,  391. 

extent  of  lessee's  liability  under,  391. 

sub-tenant's  covenant,  391. 

bound  to  repair  inevitable  accident,  392. 

basis  of  this  liability,  392.  393. 

express  qualifications  of  liability,  392. 

liability  affected  by  form  of  covenant,  392,  393. 

agreement  to  deliver  in  good  order  and  condition,  393. 

Mississippi  code  provision,  393. 

liability  affected  by  nature  of  property,  393. 

"unavoidable  casualty"  defined,  394. 

negligence  of  tenant  a  question  for  jury,  394. 

"damages  by  the  elements"  defined,  395. 

"external  parts"  of  premises  defined,  396. 

covenant  refers  to  condition  of  premises  at  time  of  letting,  397,  402. 

lessee  to  rebuild  after  condemnation  by  authorities,  397. 

extent  of  repair  required  by  covenant,  397. 

"habitable"  defined,  397. 

"necessary  repairs"  defined,  397. 

lessee  is  without  claim  on  insurance,  398. 

effect  of  ordinance  forbidding  wooden  buildings,  399. 

duty  to  maintain  machinery,  400. 

painting,  papering  and  decorating,  401. 

right  of  action  for  failure  to  return  in  good  condition  accrues  when, 
403. 

■what  constitutes  a  continuing  covenant  to  repair,  403. 

obligation  on  landlord  rests  on  express  contract,  404. 

what  amounts  to  an  agreement  to  repair,  404. 

effect  of  voluntary  repairs  by  landlord,  404. 

Jones  L.  &  T.— 30 


866  INDEX. 

[References  are  to  Sections.l 
COVENANTS    IN    l^B ASKS— Continued. 

insurance  money  need  not  be  used  in  rebuilding,  405. 
excepting  casualty  from  repair  covenant  does  not  exempt  from  lia- 
bility for  rent,  405. 
right  of  landlord  to  enter  after  destruction,  405. 
California  statute  a^  to  repairs,  406. 
statutory  provisions  in  the  Dakotas,  407. 
covenant  for  outside  repairs,  408. 
extent  of  lessor's  obligation  under  covenant  to  repair,  408,  588-598 

(see  Defects  in  Demised  Premises), 
notice  to  landlord  of  lack  of  repair,  409. 
when  lack  of  repair  is  visible,  409. 

remedies  of  tenant  for  breach  of  covenant  to  repair,  410. 
measure  of  damages  for  breach,  410.  ^, 

Covenant  to  pay  taxes,  411-420.  Ji 

runs  with  land,  411. 

rights  of  lessee  against  assignee  for  taxes,  411. 
right  of  assignee  of  reversion,  411. 
form  of  covenant,  411. 
payment  of  taxes  not  a  part  of  rent,  411. 
liability  for  taxes  in  absence  of  agreement,  412. 
new  buildings  erected  by  tenant,  412. 
exempt  property,  412. 

statutory  duty  of  tenant  to  pay  taxes,  413. 
recovery  back  of  money  so  paid,  413. 
effect  of  special  agreements,  413. 
responsibility  on  life  tenant,  413. 
water  rate  not  a  tax  or  assessment,  414. 
landlord  not  bound  to  pay  water  rates,  414. 
implication  of  agreement  to  pay  them,  414. 
tenant's  covenant  to  pay  water  rate,  414. 
construction  of  covenant  to  pay  taxes,  415. 
special  assessments  included  when,  415. 
license  fee  for  lessor  not  payable  by  lessee,  415. 
apportionment  of  taxes,  416. 
levy  distinguished  from  assessment,  417. 
liability  for  taxes  not  payable  till  after  end  of  term,  417. 
taxable  year  defined,  417. 
invalid  taxes  not  included  in  covenant,  418. 
destruction  of  premises  does  not  release  covenantor,  419. 
what  constitutes  a  breach  of  such  covenant,  420. 
prior  payment  by  lessor  unnecessary,  420. 
necessity  for  demand,  420. 
damages  for  breach,  420. 

covenant  in  assignment  to  deliver  possession,  427. 
express,  not  discharged  by  assignment,  447. 
implied,  discharged  by  assignment.  447. 
double  remedy  on,  after  assignment,  447. 
absolving  lessee  from  express  covenants,  448 


I 


I 


INDEX.  867 

[References  are  to  Sections.] 
COVENANTS    IN    1.EASES— Continued. 

no  apportionment  of,  to  repair  and  deliver  up  possession,  460. 

no  forfeiture  for  breach  of,  487,  488. 

what  constitutes  a  continuing  covenant,  500. 

election  to  treat  covenants  as  independent,  673. 

rent  not  abated  by  lessor's,  to  repair,  679. 

CROP  RENTS  AND  CROPPING  CONTRACTS, 
definition  of  the  phrase,  46. 
status  of  cropper,  46. 
general  rules  of  construction,  46. 
intention  the  test  as  to  whether  a  tenancy  exists,  47. 
inference  from  words  "lease"  and  "demise,"  47. 
imputing  intention  not  to  create  tenancy,  48. 
contracts  of  hire  to  work  land,  49. 
character  of  occupation  as  a  test,  50. 
no  partnership  created  by  such  contracts,  50. 
effect  of  exclusive  possession  and  control,  51. 
rent  may  be  paid  in  kind  under  lease,  52. 
tenancy  carries  idea  of  legal  ownership,  53. 
agreements  in  regard  to  ownership  of  crop,  53. 
co-tenancy  in  both  land  and  crops,  54. 
crop  rent  considered  as  a  reservation,  55. 
New  Hampshire  doctrine,  55. 
statutory  regulation  of  cropping  contracts,  56. 
reservation  of  crop  rent  construed,  322. 
replevin  by  assignee  of  crop  rents,  430. 
lease  for,  not  assignable,  431. 
right  of  landlord  to  gather  abandoned,  547. 
right  of  landlord  to  sue  for  injury  to,  645. 
recovery  of,  by  action  at  law,  656. 
belong  to  year  when  they  are  harvested,  656. 
North  Carolina  statute  as  to  division,  656. 

CURTESY, 

not  a  subject  of  lease,  89. 
not  allowed  in  leasehold,  173. 

CURTILAGE, 

what  passes  under  designation,  107. 

CUSTOM  OF  COUNTRY, 

not  admissible  to  vary  construction,  68. 

gives  right  to  emblements  after  fixed  term  when,  569. 

D 

DAM, 

flowing  land  creates  an  easement,  45. 
responsibility  for  negligent  use  of  water  gates,  606. 
what  included  among  tolls  earned  by,  663. 


868  INDEX. 

\_References  are  to  Sections.'i 
"DAMAGES  BY  THE  ELEMENTS," 
defined,  395. 

DAMAGES.  MEASURE  OF, 

for  breach  of  agreement  to  lease,  140. 

loss  of  profits,  140. 

expenses  Incurred  by  lessee,  140. 

unnecessary  loss  to  be  prevented,  140. 

in  action  for  eviction,  369-371. 

for  failure  to  insure,  390. 

for  failure  to  repair,  410,  672. 

for  failure  to  pay  taxes,  420. 

DATE, 

not  essential  to  lease,  60. 
lease  takes  effect  from  delivery,  60. 
term  commences  from  day  of  date,  60. 
Sunday  leases,  61. 

DEATH, 

of  either  party  revokes  license,  37. 
does  not  terminate  lease  for  years,  111. 
does  not  invalidate  renewal  agreement,  345. 
of  lessee,  continued  liability  of  executor,  447. 
of  cropper  during  year  of  occupancy,  547. 
apportionment  of  rent  after,  668. 
estoppel  to  deny  title  after,  700. 

DEBT,  ACTION  OF, 

by  assignee  of  rent  without  the  reversion,  430. 

maintainable  when,  650. 

for  reasonable  value,  650. 

nature  and  origin  of  indebitatus  assumpsit,  651. 

lies  not  till  end  of  term,  661. 

DECEIT, 

See  Fraud. 
DEED   POLL, 

lease  by  instrument  of  such  nature,  57. 
abolished  in  Missouri,  57. 
action  of  covenant  will  not  lie  on,  80,  318. 
definitions,  318. 

DEFECTS  IN  DEMISED  PREMISES, 

no  implied  warranty  against,  574. 
rule  of  caveat  emptor  applies,  574. 
liability  for  damage  caused  by,  576. 
tenant  assumes  risk  when,  576. 
personal  injuries  to  tenant  or  guest,  579. 
rule  of  caveat  emptor  applies  as  to  inherent  defects,  579. 
and  as  to  obvious  and  apparent  defects,  579. 


INDEX.  869 

[References  are  to  Sections.} 
DEFECTS    IN    DEMISED    PREMISES— Continued. 

fraudulent  concealment  a  ground  for  liability,  580. 

what  constitutes  fraud,  580. 
concealed  defects  not  discoverable  on  examination,  581. 
Minnesota  statute,  581. 
landlord's  duty  to  learn  of  defects,  582. 
unsanitary  condition  of  premises,  583. 
injuries  to  guests  of  the  tenant,  585. 
injuries  to  property  of  the  tenant,  586. 
Georgia  statute,  587. 
Liability  imposed  hy  lessor's  agreement  to  repair,  588-598. 
no  duty  to  repair  in  absence  of  agreement,  588. 
clear  language  necessary  to  create  obligation,  589. 
extent  of  statutory  duty  to  repair  fire  escapes,"  589. 
payment  by  landlord  for  repairs  made  by  tenant,  590. 
voluntary  promise  to  pay  for  repairs,  590. 
no  duty  to  repair  inevitable  accidents,  590. 
exempting  lessee  does  not  bind  lessor  to  make  repairs,  591. 
landlord's  responsibility  for  damage  rests  on  his  breach  of  contract, 

592. 
measure  of  damages,  592. 

damages  for  personal  injuries  are  too  remote,  592. 
no  recovery  in  tort  allowed,  592. 
notice  to  landlord  of  need  of  repairs,  593. 
tenant's  contributory  negligence  protects  landlord,  594. 
rights  conferred  on  third  persons  by  landlord's  covenant  to  repair, 

595. 
liability  for  unsafe  repairs,  596. 

when  made  by  agent  or  independent  contractor,  597. 
non-performance  of  voluntary  promise  to  repair,  598. 
When  the  defect  constitutes  a  nuisance,  599-611. 
primary  liability  rests  on  occupier,  599. 
"occupier"  defined,  599. 
landlord  liable  when,  599. 
statement  of  general  rule,  599. 
effect  of  technical  outstanding  title,  599. 
injuries  on  abutting  sidewalks,  600. 

defective  scuttle  or  coal  hole,  600. 
general  supervision  a  basis  of  liability,  600. 
injuries  from  falling  articles,  601. 

cap  stone,  window-blind,  awning,  601. 
falling  snow  and  ice,  602. 

landlord  and  tenant  both  responsible  when,  603. 
necessity  for  request  to  abate  nuisance,  604. 
lessor  is  not  liable  when,  605. 
improper  use  does  not  make  lessor  liable,  606. 
lessor  is  liable  when,  607. 
injuries  on  public  wharves,  608. 
collapse  of  building,  609. 


870  IXDEX. 

IReferences  are  to  Sections.'\ 
DEFECTS    IN    DEMISED    PREMISES— C07itinued. 
statutory  nuisances,  610. 
no  criminal  liability  on  lessor,  610. 
what  constitutes  a  reletting  of  premises,  611. 
Premises  occupied  by  more  than  one  tenant,  612-624. 
no  implied  covenant  of  fitness,  612. 
extent  of  landlord's  duty  to  repair  roof,  612. 

to  maintain  side  walls,  613. 

to  make  an  awning  secure,  613. 
landlord's  duty  as  to  common  passageways,  614,  615. 
injuries  cauced  by  water  flowing  from  closet,  616. 
persons  to  whom  landlord's  duty  extends,  617,  618. 
landlord  only  responsible  for  reasonable  care,  619. 
place  where  accident  occurs,  620. 

defective  carpeting  of  passageways,  621. 
liability  for  negligent  repairs,  622. 

for  negligence  of  janitor,  623. 
duty  of  tenant  to  use  due  care^  624. 
liability  for  injury  to  servant,  624. 

DELAWARE,  '^^  I 

requirement  for  seal,  74.  •''I 

statute  as  to  yearly  tenancies,  234. 

notice  to  quit,  283. 

doctrine  as  to  emblements,  569.  ^  ^^.1 

DELIVERY,  I 

of  lease  a  question  of  intent,  83.  /  } 

rule  as  to  escrows,  83. 

of  instruments  executed  in  duplicate,  83. 

possession  of  instrument  as  evidence  of,  83. 

of  assignment  of  lease  essential,  438. 

DEMAND  FOR  RENT, 

necessary  before  forfeiture,  503. 

sufficiency  of  demand,  503. 

when  continued  default  is  a  cause  of  forfeiture,  503. 

in  action  of  use  and  occupation,  503. 

no  demand  for  performance  of  other  covenants,  503. 

stipulations  dispensing  with  demand,  504. 

DENIAL  OF  TITLE, 

by  lessee  is  forbidden,  682. 

origin  and  extent  of  rule,  682. 

by  purchaser  let  into  possession,  682. 

reason  for  rule,  682. 

power  and  capacity  of  lessor,  683. 

surety  for  lessee  bound  by  estoppel,  683. 

suit  by  owners  in  severalty  to  recover  possession,  684. 

tenant  at  will  bound  by  estoppel,  685. 


IXDEX.  871 

IReferences  are  to  Sections.'] 
DENIAL    OF    TIT1L,B—C(nitinued. 

occupation  under  void  lease,  686. 

disability  to  contract,  687. 

tenant  holding  over  after  term,  6S8. 

effect  of  restoring  possession,  688. 

what  constitutes  a  sufficient  restoration,  688. 

purchase  of  adverse  title  by  tenant,  689. 

encumbrance  by  life  tenant,  689. 

tax  title,  690. 
Arkansas  doctrine,  690. 
Kansas  and  Missouri  doctrine,  690. 
right  to  deny  existence  of  tenancy,  691. 
province  of  court  and  jury,  691. 
limited  to  land  included  in  lease,  692. 
acceptance  of  lease  by  purchaser  in  possession,  693. 
mortgagee  as  tenant  of  mortgagor,  693. 
waiver  of  estoppel,  694. 
no  estoppel  against  stranger,  694. 
lessee  not  in  possession,  694. 
disclaimer  and  disavowal  of  tenancy,  695, 
running  of  statute  of  limitations,  695. 
overt  act  necessary  to  make  holding  adverse,  696. 
what  constitutes  adverse  holding,  696. 
non-payment  of  rent,  696. 
tenant  at  will,  696. 

effect  of  previous  possession  on  tenant's  right  to  deny  title,  697. 
mistake  or  misrepresentation,  697. 
contrary  doctrine  in  California  and  Michigan,  698. 
successors  of  the  tenant's  interest,  699. 

knowledge  of  tenancy  not  material,  699. 
estoppel  runs  in  favor  of  assignee  of  reversion,  700. 
validity  of  assignment  open  to  attack,  700. 
administrator  of  lessor,  700. 

burden  of  establishing  exception  on  tenant,  701. 
lessor  need  give  no  evidence  of  title,  701. 
effect  of  nature  of  premises  demised,  701. 
effect  of  inducing  acceptance  of  lease  by  fraud,  702. 
necessity  for  acceptance  of  possession,  702. 
tenant  participating  in  fraud,  702. 
waiver  of  tenant's  rights  by  laches,  702. 
showing  transfer  or  expiration  of  landlord's  title,  703. 

tax  or  execution  sale,  703. 

foreclosure  of  mortgage,  703. 
tenant  may  purchase  at  execution  sale,  704. 
rights  of  tenant  after  eviction,  705. 
actual  eviction  unnecessary,  705. 
attornment  to  stranger,  705. 

statutory  provisions,  705. 
evicted  tenant  may  take  new  lease,  706. 


I 


873  INDEX.  I 

[References  are  to  Sections.] 
DENIAL    OF    TITL,B—Cantinued. 

threatened  eviction  sufficient,  707. 

lessee  may  exercise  power  of  eminent  domain,  708. 

no  constructive  possession  conferred  by  attornment,  709. 

DESCRIPTION  OF  PREMISES, 

necessary  in  lease,  98. 

parol  evidence  to  apply  description,  98. 

technical  misdescriptions,  98. 

misstatement  of  quantity,  98. 

entry  cures  uncertain  description,  99. 

extrinsic  evidence  to  locate  between  parties,  99. 

inadequate  description  not  cured  by  parol,  100. 

description  by  reference,  100. 

subject  matter  included  within  a  description,  101. 

hotel  described  as  "house,"  101. 

"furniture"  includes  what,  101. 

lease  of  building  eo  nomine,  102. 

separate  rooms  in  tenements,  102. 

designation  by  street  number,  103. 

easements  passing  as  appurtenant,  104. 

right  to  maintain  exhaust  pipe,  104. 
rights  to  use  abutting  streets,  105. 
easement  for  light  and  air,  106. 
what  included  by  term  "curtilage,"  107. 
outside  walls  used  for  signs,  108. 
riparian  boundaries,  109. 
right  to  accretions,  109. 

reservation  to  lessor  of  part  of  premises,  110. 
land  includes  improvements,  110. 

DESTRUCTION, 

of  entire  subject  matter  ends  lease,  474. 

by  fire  does  not  abate  rent,  675. 

by  tempest  and  flood,  675. 

prior  to  commencement  of  term,  675. 

of  entire   subject  matter  abates   rent,   677. 

contrary  rule  in  Kentucky,  677. 

Nebraska  law  contrary  to  general  rule,  678. 

DEVISEE, 

not  liable  as  assignee  till  acceptance,  457. 

t^SCLAIMER  OF  RELATION, 

by  tenant  works  a  forfeiture,  474a. 

hostile  claim  of  title  a  repudiation,  474a. 

acts  must   be  open,   continuous,   and   notorious,    474a. 

sufficiency  of  acts  to  constitute  disclaimer,  475. 

attornment  or  delivery  of  possession  to  stranger,  476. 

conveyance  by  tenant,  477. 

forfeiture  by  matter  of  record,  478. 


INDEX.  873 

[References  are  to  Sections.'] 
DISCLAIMER    OF    KEI^ATIO^— Continued. 
forfeiture   by  deed   recorded,   479. 
payment  of  rent  to  stranger,  480. 
mere  words  never  work  forfeiture,  481. 

DISTRESS  FOR  RENT, 

waives  forfeiture,  497. 

right  to  forfeit  not  contingent  on  lack  of  sufficient,  502, 

definition  of  remedy,   650. 

cannot  include  interest  on  rent,  666. 

DISTRICT  OF  COLUMBIA. 

statute  as  to  yearly  tenancies,  233. 
statute  as  to  notice  to  quit,  284. 

DOWER  RIGHT, 

not  capable  of  lease,  87,  333. 

none  in  leasehold  estate,  173. 

payment  in  lieu  of,  a  personal  undertaking,  333. 

emblements  after  sale,  570,  571. 

clearing  wild  land,  636. 

DUE  CARE, 

See  Negligence. 
DURATION  OP  TERM, 

may  be  for  years,  for  life,  or  in  perpetuity,  111. 

statutory  limits  in  Alabama,  111. 

agricultural  lands  in  New  York,  111. 

death  of  parties  does  not  affect.  111. 

term  of  lease  for  years  must  be  certain,  112. 

if  uncertain  creates  mere  tenancy  at  will,  112. 

determined  by  matter  ex  post  facto,  112. 

leases  from  an  indefinite  future  time,  113. 

contingent  limitation  of  term,  114. 

on  sale  of  premises,  114. 
happening  of  contingency,  115. 
necessity  for  entry  by  lessor,  115. 
"life  of  building"   defined,  115. 
leases  for  life,  716. 
omission  of  word  "heirs,"  716. 
term  lasting  for  several  lives,  716. 
errors  in  calculating  length  of  term,  717. 
different  parcels   terminating  at   different  times,   718. 
word  "from"  either  inclusive  or  exclusive,  719. 
"from  the  date"  equivalent  to  "from  the  day  of  the  date,"  719. 

DWELLING   HOUSES, 

implied  warranty  of  fitness,  576. 
doctrine  as  to  furnished  houses,  577-578. 


874  INDEX. 

[References  are  to  Sections.1 

E 

EASEMENTS, 

granted  only  by  deed,  36. 

grant  of  right  of  way  constitutes,  39. 

flowing  of  land  an  easement,  45. 

grant  of,  distinguished  from  lease,  58. 

pass  as  appurtenances  when,  104,  105. 

for  light  and  air  protected  by  injunction,  106. 

tenancy  by  sufferance  after  taking  of,  by  eminent  domain,  221. 

EMBLEMENTS, 

vendee  in  possession  entitled  to,  32. 

right  of  servant  to,  21. 

belong  to  lessor  after  forfeiture,  493. 

definition  of  term,  567. 

''fructits  i7i(lustriale.s"  defined,  567. 

driftwood  belongs  to  lessee,  567. 

turpentine  from  trees  is  personal  property,  567. 

reasons  for  doctrine  of  emblements,  567. 

growing  crops  considered  as  personal  property,  567. 

tenant  owns,  during  term,  568. 

provisions  for  spending  bay  and  manure  on  premises,  568. 

doctrine  of,  rests  on  uncertainty  of  tenure,  569. 

rule  in  Delaware,  569. 

rule  in  New  Jersey,  569.  ..^ 

rights  conferred  by  contract,  569. 

EMINENT    DOMAIN, 

taking  by,  creates  no  tenancy,  7. 

tenancy  by  sufferance  possible  after  taking  easement  by,  221. 

right  of  tenant  by  sufferance  after  taking,  226. 

taking  under,  entitles  lessee  to  damages,  643. 

agreement  to  abate  rent,  does  not  include  taking  under,  680. 

no  estoppel  upon  lessee  against  use  of  power,  708. 

ENCUMBRANCE, 

purchase  of,  by  life  tenant,  689. 

ENTRY, 

by  landlord  after  destruction,  405. 

by  assignee  not  necessary  to  bind  him,  458. 

essential  to  take  advantage  of  condition,  482. 

necessity  for,  generally,  483. 

in  pursuance  of  covenants  not  unlawful,  483. 

waiver  of  necessity  for,  483. 

service  of  declaration  in  ejectment  as  substitute  for,  484. 

no  notice  of  forfeiture  necessary  beyond  entry,  485. 

right  of,  not  assignable,  494. 

provision   that  does   not  work   forfeiture   of   rents,   501. 

effect  of,  by  tenant  after  abandonment,  547. 


INDEX.  875 

[References  are  to  Sections.'] 
EQUITY, 

right  of  reformation  of  lease  in,  70. 

lost  by   laches,   70. 

third  parties  affected  with  knowledge,  70. 

injunction  against  interference  with  light  and  air,  106. 

specific  performance  of  agreement  to  lease,  138. 

loss  of  right  by  laches,  138. 

premature  suit  for,  139. 

no  injunction  against  breach  of  independent  covenants,  325. 

injunction  against  alterations,  380. 

prohibited  use  enjoined,  384. 

Injunction  to  stay  waste,  384. 

injunction  against  assignment,  431. 

enjoining  collection  of  purchase  money  for  leasehold,  435. 

decree  for  sale  of  leasehold,  liability  of  assignee,  444. 

will  not  compel  delivery  of  lease  after  cale  on  execution,  444. 

relief  against  sub-tenant  of  insolvent  lessee,  445. 

bill  in,  not  appropriate  remedy  to  regain  possession,  563. 

injunction  against  threatened  waste,  638. 

ESCROW, 

rule  as  to  delivery  of  lease  in,  83. 

ESTOPPEL, 

to  deny  assignment  after  transfer  of  possession,  440. 

of  lessor  against  entering  on  assignee  or  sub-tenant,  473. 

by  acceptance  of  rent,  473. 

of  lessee  to  deny  lessor's  title,  see  Dexial  of  Title. 

to  claim  fixtures,  722. 

EVICTION, 

essential  to  breach  of  covenant  for  quiet  enjoyment,  354. 
what  constitutes  an  eviction,  354,  355. 
,         actual  and  constructive  compared,  355,  356. 
waiver  of  constructive,  356. 
physical  expulsion,  357. 

entry  by  landlord  under  claim  of  privilege,  358. 
Interference  with  light  and  air,  359. 
nuisance  on  adjoining  premises,  360. 
acts  of  wrong  doers  do  not  constitute,  361. 
taking  under  eminent  domain,  362. 
outstanding  title  alone  does  not  constitute,  363. 
service  of  notice  to  quit,  363. 
judgment  of  law,  considered  as,  363. 
effect  of,  is  to  suspend  rent,  364. 
partial  eviction  suspends  rent  when,  365. 
right  of  action  for  eviction,  368. 
u]e  of  damages  in  such  actions,  369-371. 
hv  title  paramount  as  ground  for  apportioning  rent,  669. 
-ntitles  tenant  to  deny  landlord's  title,  705. 
effect  of  judgment  of  eviction,  705. 
after,  tenant  may  take  new  lease,  706. 


876  INDEX. 

[References  are  to  Sections.} 
EXECUTION  SALE  OF   LEASEHOLD, 
allowed  as  of  a  chattel,  172. 
operates  as  assignment,  444. 
return  of  officer  sufficient  memorandum,  444. 
title  passes  subject  to  equities,  444. 
tenant  may  purchase  at,  against  landlord,  704. 

EXECUTORS  AND  ADMINISTRATORS, 
authority  to  grant  lease,  93. 
can  sell  leasehold  as  chattel,  171. 
action  on  guaranty  of  rent,  333. 
liable  after  death  of  lessee,  447.  ' 

EXPLOSION, 

of  boiler  injuring  tenant,  579. 
considered  a  casualty  when,  679. 

EXTENSION   OF   TERM, 

See  Renewal  of  Lease, 
FEE, 

grant  of,  distinguished  from  lease,  58. 
ownership  of,  not  necessary  to  grant  of  lease,  84. 

FENCES, 

damage  for  failure  to  repair,  410. 
become  a  part  of  realty,  714. 

FIRE, 

destruction  by,  does  not  release  from  covenant  to  repair,  392. 
distinction  between  repairing  and  rebuilding,  392. 
Nebraska  doctrine,  392. 
responsibility  rests  on  contract,  393. 
construction  of  such  covenants,  393. 
liability  of  tenant  for  negligent,  627. 
destruction  by,  does  not  abate  rent,  675. 
lessor's  obligation  to  rebuild,  676. 

FIRE  ESCAPE, 

duty  of  landlord  to  repair,  589. 

FITNESS  OF   DEMISED  PREMISES, 

no  implied  warranty  as  to,  574. 

no  implied  condition  as  to,  574. 

rule  of  caveat  emptor  applies,  574. 

oral  evidence  of  warranty  inadmissible,  575. 

application  of  rule  to  demise  of  dwelling  house,  576. 
to  letting  of  rooms  in  tenement,  576. 
to  demise  of  furnished  apartments,  577-578. 
FIXTURES, 

general  rule  for  articles  fixed  to  freehold,  710. 

furnishings  in  the  nature  of  furniture.  710. 

trover  does  not  lie  for  conversion  of,  710. 


INDEX.  877 

[References  are  to  Sections.] 
FIXTURES— Continued. 

allowing  removal  a  modification  of  ancient  rule,  711. 
mode  of  annexation  affects  right  of  removal,  712. 
substitutions  for  wornout  parts,  712. 
agreements  as  to  removal,  713. 

remedy  of  grantee  of  reversion,  714. 
fence  becomes  part  of  realty,  714. 
time  of  making  agreement,  715. 
agreements  bind  assignees  when,  715. 
right  to  remove  justifies  sale,  715. 
rights  of  attaching  creditors,  715. 
time  for  removal,  716. 

agreement  necessary  after  end  of  term,  716. 
what  constitutes  an  agreement,  716. 

tenants  at  will  have  reasonable  time  after  end  of  holding,  716. 
conditional  right  of  removal,  717. 

binds  assignee  of  fixtures,  717. 
renewal  forfeits  right  to  removal,  718. 
mere  continuance  of  same  tenancy  does  not  forfeit,  718. 
what  constitutes  a  continuance,  718. 
Colorado  doctrine,  718. 

new  lease  following  agreement  for  removal,  718,  720. 
time  for  removal  under  agreement,  719. 
removal  during  extension  of  term,  721. 
new  lease  executed  to  release  retiring  partner,  721. 
estoppel  on  lessor  to  prevent  removal,  719,  722. 
rights  of  lessee  purchasing  estate,  722. 
mortgagee  of  lessee's  interest,  723. 
"improvements"  defined,  724. 

videlicet  clause,  724. 
erections  for  carrying  on  trade,  725. 

what  constitutes,  725. 

scenic  railway,  725. 

boilers  and  engines,  725. 

bowling  alley,  725. 
buildings  cannot  be  removed  ordinarily,  726. 
relaxation  of  foregoing  rule,  727. 
declarations  of  lessee  as  evidence,  727. 
agricultural  fixtures,  728. 

FLOOD, 

injury  by,  does  not  abate  rent,  675. 

FLORIDA, 

forfeiture  for  non-payment  of  rent,  511. 

FLOWING  LANDS, 

right  of,  is  an  easement,  45. 


878  INDEX. 

[References  are  to  Sections.'] 
FORCIBLE  ENTRY  AND  DETAINER, 
only  lies  in  case  of  tenancy,  19. 
indictment  against  servant  holding  as  tenant,  21. 
right  to  recover  possession  by  force,  556. 
early  statute,  556. 

tenant's  good  faith  in  holding  over,  556. 
forcible  entry  defined,  557. 
civil  liability  of  landlord,  558. 
plea  of  liberum  tenementuyn,  558,  561. 
exclusiveness  of  remedy,  558. 
entry  to  post  notice  of  lien,  558. 
liability  for  assault,  559. 
entry  on  tenant  legally  in  possession,  560. 
special  restrictions  on  right  to  enter  by  force,  561. 
summary  process  distinguished,  562. 
necessity  for  existence  of  tenancy,  563. 
statutory  penalty  for  holding  over,  564. 
bill  in  equity  as  remedy  to  obtain  possession,  565. 

FORFEITURE  OF  LEASE, 

for  assignment  contrary  to  statute,  432. 
by  repudiation  of  tenant's  obligation,  474a. 
effect  of  hostile  claim  of  title,  474a.  ^ 

acts  of  dicclaimer  open,  continued  and  notorious,  474a. 
sufficiency  of  disclaimer  to  cause  forfeiture,  475. 
attornment  or  delivery  of  possession  to  stranger,  476. 
conveyance  by  tenant  a  disclaimer  when,  477. 
by  matter  of  record,  478. 
by  deed  recorded,  479. 

payment  of  rent  to  stranger  as  disclaimer,  480. 
mere  v^'ords  never  work  forfeiture,  481. 
By  breach  of  condition  in  lease,  482-495. 

condition  of  this  nature  valid  and  enforcible,  482. 

condition  defined,  482. 

condition  distinguished  from  limitation,  482. 

forfeture  for  obscure  facts  not  permitted,  482. 

necessity  for  reentry,  483. 

statutory  substitutes  for  reentry,  484. 

entry  or  equivalent  acts  sufficient  to  determine  estate  for  breach 

of  condiion,  485. 
notice  of  intention  to  forfeit  necessary  in  Nebraska,  485. 
condition  for,  to  be  strictly  construed,  486. 
equity  will  not  aid  to  enforce  a  forfeiture,  486. 
estoppel  to  enforce  a  forfeiture,   486. 
breach  of  covenant  confers  no  right  of  reentry,  487. 
construed  as  covenants  in  case  of  doubt,  487. 
breach  of  implied  covenant  no  ground  for,  488. 
lease  of  mineral  lands,  488. 
by  acts  of  sub-tenants,  489. 


INDEX.  879 

[Refere7ices  are  to  Sections.y 
FORFEITURE    OF    LEASE— CoJitinued. 

statutory,  for  illegal  use  by  sub-tenant,  489. 
equity  will  not  enforce  a  forfeiture,  490. 
removal  of  cloud  caused  by  alleged  forfeiture,  490. 
relief  against  forfeiture  by  equity,  491. 
of  covenants  to  pay  money,  491. 
of  covenants  to  repair  or  insure,  492. 
right  to  emblements,  493. 
right  of  entry  not  assignable,  494. 
not  an  estate  in  land,  494. 

exception  in  Illinois,  New  Jersey  and  Kansas,  494. 
landlord  may  hold  lessee  liable  on  lease  instead  of  forfeiting,  495. 
lease  not  "void,"  but  voidable  after  breach  of  condition,  495. 
conditions  for  forfeiture  for  benefit  of  lessor  alone,  495. 
assignment  contrary  to  condition  voidable  only,  495. 
landlord  cannot  enforce  in  part  and  waive  in  part,  495. 
Waiver  of  ground  for,  496-501. 
what  constitutes  a  waiver,  496. 
distinction  as  to  conditional  limitations,  496. 
acceptance  of  rent  constitutes,  497. 
suit  for  entire  amount  of  rent,  497. 
distraining  for  rent,  497. 
effect  of  mere  demand  for  rent,  497. 

lessor  must  have  knowledge  of  ground  for  forfeiture,  497. 
past  due   rent  receivable  without  waiving   rights,  498. 
allowing  default  to  continue  not  a  waiver,  499. 
permission  to  hold  over  a  waiver,  499. 
does  not  apply  to  continuing  covenant,  500. 
liability  for  rent  subsequent  to  forfeiture,  501. 
'Non-payment  of  rent  as  ground  for  forfeiture,  502-537. 
no  right  to  enter  for,  at  common  law,  502. 
same  rule  applies  to  royalties,  502. 
a  harsh  remedy,  not  favored  by  law,  502. 
sufficiency  of  distress  on  premises,  502. 
necessity  for  demanding  rent,  503. 
time  and  place  for  demand,  503. 
amount  to  be  demanded,  503. 
mode  of  making  demand,  503. 
including  interert  on  demand,  508. 
demand  by  assignee  valid  when,  503. 
use  and  occupation  not  preceded  by  demand,  503. 
stipulation  dispensing  with  demand,  504. 
sufficiency  of  such  stipulation,  504. 
damages  by  tenant  not  a  legal  set  off,  505. 

state  statutes  regarding  forfeiture  for  non-payment  of  rent,  506-537. 
waste  as  a  ground  for  forfeiture,  639. 


i 


880  INDEX. 

[References  are  to  Sections.'i 
FRAUD, 

in  inducing  lease  shown  by  parol,  125. 

forged  instrument  and  fraudulent  inducement  distinguished,  125. 

rescission  and  defense  of  action  for  rent,  126. 

what  constitutes  laches,  126. 

Missouri  doctrine  as  to  trial  of  issue  of  fraud,  127. 

defrauded  lessee's  election  of  remedies,  128. 

prompt  rescission  required  in  Illinois,  128. 

what  constitutes  fraud,  129, 

misrepresenting  legal  effect,  129. 

fraudulent  alteration,  129. 

concealing  defects  a  ground  for  liability,  580. 

as  basis  for  recoupment,  674, 

landlord  not  an  insurer,  674. 

lessee  induced  by,  may  deny  landlord's  title,  702. 

FRAUDS,  STATUTE  OF, 

applies  to  what  collateral  parol  agreements,  131, 

the  English  act,  147. 

form  of  statutes  in  the  United  States,  148. 

parol  leases  not  absolutely  void,  148. 

exception  of  short  term  parol  leases,  148. 

requirements  as  to  value  of  rent  reserved,  149. 

New  Mexico  follows  English  law,  150. 

parol  assignments  forbidden,  151,  440. 

part  performance  by  transfer  of  possession,  151. 

leases  for  one  year  from  future  date,  152. 

extent  of  validity  of  parol  lease  for  short  term,  153, 

doctrine  in  South  Carolina  and  Maryland,  153. 

duration  of  term  of  parol  lease,  154. 

renewal  agreement,  154. 

whether  void  only  as  to  excess,  155. 

sufficiency  of  memorandum,  156. 

written  I'eceipts  invalid  to  create  a  legal  term,  156. 

ratification  of  parol  lease,  156. 

authority  of  agent,  157. 

ratification  of  lease  by  agent,  157. 

undisclosed  principals,  15  S. 

effect  of  part  performance  on  parol  lease,  159. 

distinction  between  equity  and  law,  159. 

what  constitutes  part  performance,  160. 

must  refer  to  agreement,  160. 

delivery  of  possession,  160. 

making  valuable  improvements,  160. 

part  payment,  160. 

Alabama  statute,  161. 

parol  agreement  to  lease  distinguished  from  parol  lease,  162. 

parol  notice  of  extension,  342. 

parol  promise  to  purchase  improvements,  375. 


INDEX.  881 


I 


[References  are  to  Sections.l 
FRAUDS,  STATUTE    OF— Continued. 

extends  to  assignments  of  leases,  440. 

of  parol  leases,  441. 
undertaking  by  surety  valid  when,  662. 

FRUCTUS  INDUSTRIALES, 
defined,  567. 

FURNISHED  HOUSE, 

implied  warranty  of  fitness  when,  577-578. 

FURNITURE, 

in  description  includes  what,  101. 
distinguished  from  fixtures,  710. 

^'FURTHER"   LIABILITY, 
defined,   334. 

G 

GAMBLING, 

on  demised  premises,  123. 
duty  of  lessor  to  prevent,  386. 

GENERAL  ASSIGNMENT, 

may  transfer  leasehold,  461. 

acceptance  of  leasehold  by  assignee,  461. 

as  breach  of  condition  against  sub-letting,  466. 

GEORGIA, 

statute  as  to  cropping  contracts,  56. 

statute  as  to  yearly  tenancies,  235. 

statute  as  to  notice  to  quit,  285. 

estate  for  years  passes  as  realty,  433. 

right  "to  possess  and  enjoy"  how  transferred,  433. 

forfeiture  for  non-payment  of  rent,  512. 

statute  as  to  liability  for  defective  premises,  587. 

GUARANTY, 

of  rent  does  not  run  with  land,  333. 
suit  on,  by  administrator  of  lessor,  333. 
none  implied  on  assignment,  352. 

GUARDIAN, 

may  lease  ward's  land,  89. 
rent  should  be  reserved  to  whom,  89. 
mineral  leases  not  permitted,  89. 
for  nurture  without  power  to  lease,  89. 
Illinois  statute,  89. 
Iowa  statute,  89. 
mode  of  leasing,  90. 
lease  limited  to  Infancy  of  ward,  90. 
cannrt  bind   ward  by  general  covenants,  350. 
Jones  L.  &  T.— 31 


882  INDEX. 

[References  are  to  Sections.'] 

H 

HABENDUM, 

clause  not  necessary  in  assignment,  437. 

"HEIRS," 

necessary  to  create  more  than  life  estate,  716. 

HOLDING  OVER, 

creates  tenancy  from  year  to  year,  201. 

landlords  right  to  charge  tenant,  201. 

new  tenancy  not  under  original  lease,  201. 

terms  of  contract  remain  the  same,  202,  555. 

conditional  limitation  applicable,  202. 

tenant  cannot  create  different  tenancy,  202.  'i|ff 

landlord's  option  to  charge  for  another  year,  203.  SB 

acceptance  of  rent  implies  assent,  204.  •  J 

overt  acts  not  necessary  to  indicate  assent,  205.  '■] 

effect  of  dissent  on  part  of  tenant,  206. 

rule  in  England,  207. 

followed  in  Massachusetts  and  Missouri,  207. 

surrender  rendered   impossible  by  act  of   God,  208. 

length  of,  necessary  to  charge  tenant,  209. 

where  landlord  is  responsible,  209. 

Kentucky  statute,  209. 

rebutting  presumption  of  yearly  tenancy,  210. 

covenant  as  to,  in  lease,  211.  ! 

express  renewal,  212. 

negotiations  for  renewal,  212.  ,     ' 

changes  in  amount  of  rent,  213.  1 

penalty  of  double  rent,  214. 

by  sub-tenant,  554.  I 

agreements  as  to,  555.  j: 

sufficiency  of  vacating  premises,  555.  | 

agreements  as  to  improvements,  555. 

statutory  penalty  for,  564. 

bill  in  equity  as  remedy  to  obtain  possession,  565. 

denial  of  title  during,  not  permitted,  688.  f 

HOLIDAY, 

rent  falling  due  on,  661. 

HUSBAND, 

right  of,  to  lease  wife's  land,  88. 
right  of  to  wife's  leaseholds,  88. 
Washington  statute  as  to  community  lands,  88. 
statute  forbidding,  to  lease  wife's  land,  181. 


ICE, 


I 


grant  of  right  to  cut,  a  lease,  40. 

See  also,  Snow  and  Ice. 


A 


INDEX.  883 

[References  are  to  Sections.l 
IDAHO, 

statute  as  to  notice  to  quit,  286. 

ILLEGALITY, 

lease  to  aid  unlawful  conspiracy,  120. 

landlord's  responsibility  for,  120. 

effect  of  illegal  user  by  sub-tenant,  120. 

kinds  of  illegality,  121. 

fixing  knowledge  on  lessor,  121. 

establishing  defense  of,  121. 

lease  of  premises  for  purpose  of  prostitution,  122. 

premises  used  for  gambling,  123. 

no  estoppel  to  set  up  defense  of,  124. 

ILLINOIS, 

statute  authorizing  plea  of  want  of  consideration,  65. 

right  of  guardian  to  lease  ward's  land,  89. 

leasing  for  purpose  of  prostitution,  122. 

statute  as  to  notice  to  quit,  287. 

statute  dispensing  with  attornment,  423. 

forfeiture  for  non-payment  of  rent,  513. 

surrender  of  leases  m  futuro,  546. 

statute  as  to  action  for  rent  by  undisclosed  principal,  660. 

defense  of  want  of  consideration,   665. 

statute  as  to  interest  on  rent,  666. 

IMPLIED  COVENANTS, 

See  Covenants. 
on  assignment  of  lease,  435. 

IMPLIED  WARRANTY, 

of  fitness,  general  rule,  574. 

no  condition  as  to  fitness,  574. 

rule  of  caveat  emptor  applies,  574. 

oral  evidence  of  warranty  inadmissible,  575. 

application  of  rule  to  demise  of  dwelling  house,  576. 

no  liability  for  damage  caused  by  defects,  576. 

tenant  assumes  risks  after  inspection,  576. 

application  of  rule  to  letting  of  rooms  in  tenement,  576. 

defects  known  to  landlord,  and  unknown  to  tenant,  576. 

Michigan  rule,  576. 

application  of  rule  to  demise  of  furnished  house,  577. 

offensive  odors,  577. 

English  doctrine,  578. 

furnished  rooms  in  a  house,  578. 

Massachusetts  doctrine,  578. 

IMPROVEMENTS  ON  LEASED  PREMISES, 

landlord  liable  for,  only  by  agreement,  373. 

stipulation  as  to  removal,  373. 

agreements  for  purchase  of,  by  landlord,  374, 


384  INDEX. 

[References  are  to  Sections.} 
IMPROVEMENTS    ON    LEASED    FREMISKS— Continued. 
alternative  option  to  buy,  or  renew  lease,  375. 
considered  as  part  of  realty,  376. 
covenants  as  to,  run  with  land,  332,  377. 
mechanic's  lien  for,  378. 
proceedings  for  appraisal  of,  379. 
provision  against  alterations,  380. 
cannot  be  removed  without  agreement,  590. 
more  comprehensive  term  than  fixtures,  724. 

INDENTURE, 

construction  of  covenants  in,  57. 
delivery  of  counterparts,  57. 
distinguished  from  deed  poll,  318. 
general  principles  of  construction,  322. 

INDEPENDENT  CONTRACTOR, 
becomes  tenant  when,  22. 

INDIANA, 

statute  against  conditional  attorney's  fee,  64. 
right  of  married  woman  to  lease  lands,  87. 
statute  as  to  year'xy  tenancies,  236. 
statute  as  to  notice  to  quit,  288. 
forfeiture  for  non-payment  of  rent,  514. 
forfeiture  for  waste,   639. 

INFANCY, 

of  lessee,  92. 

liability  after  enjoyment,  92. 

of  lessor,  95. 

cannot  act  through  agent,  95. 

how  lease  executed  during,  is  avoided,  95. 

leased  room  regarded  as  necessary,  96. 

assignment  by  infant,  97. 

INFECTION, 

duty  of  landlord  to  warn  against,  584. 

INSURANCE, 

covenants  as  to,  389-390. 

classed  as  usual  covenant  in  leases,  389. 

sufficiency  of  agreement,  389. 

compliance  with  covenant,  389. 

runs  with  the  land,  389. 

measure  of  damages  for  failure  to  insure,  390. 

lessee  rebuilding  has  no  claim  on,  398. 

collected  by  landlord  need  not  be  used  in  rebuilding,  399,  405,  676. 

INTERESSE  TERMINI, 
definition,  15. 
rights  conferred  by  on  holder  of,  15. 


• 


^ 


INDEX.  885 

[References  are  to  Sections.} 
INTERESSE    TERMl'NI— Continued. 
created  as  a  future  interest,  15. 

landlord's  right  to  maintain  trespass  not  affected  by  outstanding,  16. 
possession  executed  in  lessee  when  lease  takes  effect  as  a  bargain 

and  sale,  17. 
destruction  of  premises  during,  675. 

INTEREST, 

demand  for  rent  including,  valid,  503. 

on  rent  recoverable  when,  666. 

not  included  in  distress,  666. 

Virginia  doctrine,  666. 

statutes  in   Illinois  and   Kentucky,  666. 

rents  and  profits  due  mortgagor,  666. 

IOWA, 

guardian's  right  to  lease  ward's  land,  89. 
statute  as  to  yearly  tenancies,  237. 
statute  as  to  notice  to  quit,  298. 
forfeiture  for  non-payment  of  rent,  515. 
statute  as  to  attornment  to  stranger,  709. 


J 
JANITOR, 

landlord   liable  for  negligence  of,  623. 

JOINT  LESSEES, 

breach  of  covenant  not  to  sub-let  by,  468. 


K 

KANSAS, 

rights  as  to  notice  to  quit  not  mutual,  259. 

statutory  provision  as  to  notice  to  quit,  290. 

statutory  provision  against  assignment,  432. 

forfeiture  for  non-payment  of  rent,  516. 

doctrine  as  to  application  of  insurance  money  after  fire,  676. 

purchase  of  tax  title  by  tenant,  690. 

attornment  to  holder  of  tax  title,  709. 

KENTUCKY, 

statute  as  to  effect  of  holding  over,  209. 

statute  as  to  yearly  tenancies,  238. 

statute  as  to  notice  to  quit,  291. 

statutory  provisions  against  assignment,  432. 

statute  as  to  interest  on  rent,  666. 

statute  as  to  apportionment  of  rent,  671. 

no  abatement  of  rent  after  entire  destruction,  677. 

attornment  to  stranger  after  judgment  of  eviction,  705. 


886  iXDEx. 


KEY, 


[References  are  to  Sections.1 

retained  by  tenant  after  eviction,  356. 

delivery  of,  as  symbol  of  possession,  427. 

acceptance  of  by  landlord  as  proof  of  surrender,  540,  548. 

failure  to  return  as  evidence  of  holding  over,  555. 

KINDS  OF  TENANCY, 

See  Tenancy  from  Year  to  Year,  Tenancy  at  "Will,  Tenancy  by  Suf- 
ferance, AND  Tenancy  from  Month  to  Month. 


L 

LEASE, 

written  instrument  as  proof  of  tenancy,  11,  12. 

distinguished  from  license,  37-45  (see  License). 

considered  as  a  deed  by  ancient  authors,  57. 

in  common  parlance  a  leasehold  estate,  57. 

indentures  and  deeds  poll,  57. 

construction  of  indenture,  57. 

deed  poll  abolished  in  Missouri,  57. 

distinguished   from   other   instruments,   58. 

grant  of  fee,  58. 

grant  of  easement,  58. 

technical  requirements  of  form,  59. 

instrument  in  form  of  receipt,  59. 

indorsement  on  back  of  title  bond,  59. 

grant  of  franchise  not  a  lease,  59. 

vote  of  town  selectmen,  59. 

agreement  to  pay  bonus  to  landowner,  59. 

date  is  not  essential,  60. 

deed  takes  effect  from  delivery,  60. 
term  commences  from  day  of  date,  60. 
executed  on  Sunday,  61. 
ratification  of  void  lease,  61. 
alteration  of  instrument,  62. 
reservation  of  part  of  thing  demised,  63. 
thing  specifically  granted  cannot  be  excepted,  63. 
public  roads  and  lots  designated  by  number,  63. 
failure  of  reason  for  making  exception,  63. 
stipulation  for  attorney's  fee  valid,  64. 

Indiana  statute  against  conditional  fees,  64. 
consideration  for  grant  of  lease,  65. 

Illinois  statute  authorizing  plea  of  want  of  consideration,  65. 
construction  to  be  declared  by  court,  66. 
instrument  to  be  construed  as  a  whole,  67. 
custom  of  country  not  admissible,  68. 
inconsistent  and  contradictory  clauses,  69. 
weight  of  written  and  printed  provisions,  69. 
erasure  of  a  printed  clause,  69. 
meaning  of  term  "relet,"  69a. 


INDEX.  887 

[References  are  to  Sections.l 
LEASE — Continued. 

instruments  construed  together,  69a. 
reformation  of  lease,  70. 
right  of  reformation  lost  by  laches.  70. 
when  dispute  is  no  longer  between  original  parties,  70. 
Execution  and  delivery,  71-83. 

necessity  for  acknowledgment,  71,  72. 

proof  of  signature  of  subscribing  witness,  71. 

doctrine  in  Ohio  and  Maryland,  72. 

rights  of  third  parties  unaffected  by  unrecorded  lease,  73. 

seal  unnecessary  between  parties,  74. 

lease  by  corporation  not  under  seal,  74. 

Delaware  statute  requiring  seal,  74. 

signature  of  lessor  necessary,  75. 

leases  drawn  in  duplicate,  75. 
errors  in  signature,  76. 
lessee  need  not  sign,  77. 

bound  by  acceptance  of  lease,  77. 
indenture   taking   effect   as    deed    poll    for   lack   of   lessee's    signa- 
ture, 78. 
acceptance  sufficient  without  occupation,  79. 
presumption  of  acceptance,  79. 
acceptance  determined  by  jury,  79. 
form  of  action  on  unsigned  lease,  80. 
executed  by  undisclosed  principal,  81. 
executed  by  corporations,  82. 
delivery  a  question  of  intention,  83. 
Parties  to  leases,  84-97. 
in  general,  84. 

ownership  in  fee  unnecessary,  84. 
joint  lease  by  owners  in  severalty,  84. 
estoppels  distinguished,  84. 
person  dispossessed  cannot  grant  lease,  85. 
what  constitutes  adverse  holding,  85. 
California  code  provision,  85. 

one  tenant  in  common  cannot  lease  community  land,  86. 
leases  by  and  to  married  women,  87. 

separate  property,  87. 

Mississippi  code  provision,  87. 

Maine  act,  87. 

Indiana  statute,  87. 
no  lease  of  dower  interest,  87. 
right  of  husband  to  lease  wife's  real  estate,  88. 
leasehold  estates  of  married  women,  88. 
Washington  act  as  to  community  lands,  88. 
guardian's  right  to  lease,  89. 
mode  of  procedure  for  guardian,  90. 
lease  limited  to  infancy  of  ward,  90. 
trustees  have  general  power  to  make,  91. 


8S8  INDEX. 

[References  are  to  Sections.l 

LEASE — Continued. 

duty  of  trustee  in  this  respect,  91. 
trustee  for  charitable  use,  91. 
infant  lessee,  92. 
executors  and  administrators,  93. 
mortgagor  and  mortgagee,  94. 
Infant  lessor,  95. 
Description  of  premises,  98-110. 
necessity  for,  98. 

parol  proof  allowable  to  apply  description,  98. 
technical  misdescriptions,  98. 
location  of  boundaries  by  parties,  99. 
insufficiency  of  description  cured  by  possession,  99. 
parol  evidence  to  complete  inadequate,  100. 
what  included  in  a,  a  matter  of  evidence,  101. 
"furniture"  includes  what,  101. 
lease  of  bulding  eo  nomine,  102. 

rooms  in  tenement,  102. 
designation  of  house  by  street  number,  103. 
easement  passes  as  appurtenance  when,  104. 
rights  in  public  streets  pass  as  appurtenances,  105. 
easement  for  light  and  air,  106. 
what  passes  as  "curtilage,"  107. 
use  of  outside  walls  for  signs,  108. 

protected  in  such  use  by  equity,  108. 
riparian  boundaries,  109. 
reservations  by  lessor,  110. 
validity  of  reservation,  110. 
Duration  of  term,  111-119. 

for  life,  for  years,  or  in  perpetuity.  111. 
limited  by  statute  in  Alabama,  111. 
agricultural  lands  in  New  York,  111. 
death  of  parties  does  not  affect.  111. 
term  should  be  certain,  112. 
determined  by  matter  ex  post  facto,  112. 
beginning  at  indefinite  future  time,  113. 
contingent  limitation  of  term,  114. 
happening  of  contingency,  115. 
term  for  life  of  tenant,  116. 
errors  in  calculation,  117. 

word  "from"  either  exclusive  or  inclusive,  119. 
Illegal  leases,  120-124. 

rent  not  recoverable  on  lease  to  aid  conspiracy,  120. 

landlord  not  responsible  for  illegal  use  by  tenant,  120. 

illegal  user  by  sub-tenant,  120. 

kinds  of  illegality,  121. 

fixing  knowledge  on  lessor,  121. 

establishing  defense  of  illegality,  121. 

use  of  premises  for  purpose  of  prostitution,  122. 


INDEX.  889 

[References  are  to  Sections.} 
LEASE— Continued. 

rescission  and  defense  of  action  for  rent,  126. 
premises  used  for  gambling,123. 
no  estoppel  to  set  up  defense  of  illegality,  124. 
Leases  obtained  by  fraud,  125-129. 
fraud  may  be  shown  by  parol,  125. 
distinction   between   forged   instrument  and   fraud    in   inducement 

125. 
rescission  and  defense  of  action  for  rent,  126. 
what  constitutes  laches,  126. 
Missouri  doctrine,  127. 
defrauded  lessee's  election  of  remedies,  128. 
prompt  rescission  required  in  Illinois,  128. 
what  constitutes  fraud,  129. 
misrepresenting  legal  effect,  129. 
fraudulent  alteration,  129. 
Collateral  parol  agreement.  130-137. 

presumption  as  to  written  instrument,  130. 
compliance  with  statute  of  frauds,  131. 
what  agreements  are  collateral.  132,  133. 
agreement  to  be  performed  before  term  begins,  133. 
English  rule,  134. 

subsequent  agreement  reducing  rent,  135. 
sufficiency  of  consideration,  136. 
execution  of  new  lease,  137. 

See  also  Agreements  to  Lease;  Frauds,  Statute  of;  Record- 
ing Leases. 
LESSEE, 

need  not  sign  lease,  77. 

bound  by  acceptance  of  lease,  77. 

indenture  taking  effect  as  deed  poll  for  lack  of  signature  by,  78. 

mere  acceptance  sufficient  without  entry,  79. 

married  women,  88. 

infant,  92. 

right  to  assign  leasehold,  431. 

statutory  provisions  restricting  right  to  assign,  432. 

bound  by  express  covenants  after  assignment,  447. 

obligation  based  on  privity  of  contract,  447. 

released  from   implied  covenants  by  assignment,   447,  452. 

liability  in  covenant,  447. 

executor  bound  after  death  of,  447. 

discharge  from  express  covenants  when,  448. 

agreements  for,  448. 

implied  from  what  facts,  448. 

lessor's  consent  to  different  use,  448. 
right  of  action  after  assignment,  448. 
obligation   is    that  of   surety   for  assignee,   449. 
not  discharged  by  lessor's  laches  in  suing  assignee,  449. 
obligation  unaffected  by  length  of  term  after  assignment,  450. 


1 


890  IXDEX. 

[References  are  to  Sections.} 

'LESSEE—Contimied. 

can  recover  money  paid  in  behalf  of  assignee,  451. 
liability  of  assignee  on  express  covenant,  451. 
what  constitutes  express  covenant  to  pay  rent,  452 
surety  for,  not  discharged,  453. 

waiver  of  covenant  against  assignment,  453. 
effect  of  general  assignment  by,  461. 

LESSOR, 

must  sign  lease,  75. 

instruments  drawn  ih  duplicate,  75. 

errors  in  signature  by,  76. 

need  not  own  fee,  84. 

must  not  be  disseised,  85. 

co-tenant,  86. 

married  woman,  87. 

husband,  88. 

guardian,  89. 

trustee,  91. 

executor  or  administrator,  93. 

mortgagor  and  mortgagee.  94. 

infant,  95. 

right  of,  to  assign  lease  or  reversion,  421. 

does  not  release  lessee  by  accepting  assignee,  447. 

double  remedy  against  lessee  and  assignee,  447. 

effect  of  recovery  from  one,  448. 
agreement  to  discharge  lessee,  448. 

implied  from  what  circumstances,  448. 

putting  premises  to  new  use,  448. 
laches  in  suing  assignee  as  discharge  of  lessee,  449. 
liability  of,  on  covenants  after  assignment,  454. 

covenant  to  sell  to  lessee,  454. 
no  duty  to  relet  abandoned  premises,  539. 
estoppel  to  deny  power  and  capacity  of,  683. 

LIBERUM  TENEMENTUM, 

plea  of,  by  landlord  as  defense  for  entering  on  tenant,  228,  558,  561. 

LICENSE, 

definition,  36. 

need  not  be  in  writing,  36. 

easements  granted  only  by  deed,  36. 

license  is  revocable,  indivisible,  non-assignable,  37. 

revoked  by  death  of  either  party,  37. 

when  incident  to  a  valid  grant,  37. 

executed  license  to  cut  standing  timber,  38. 

takes  effect  as  lease  when,  38. 
conveyance  of  estate  in  land  constitutes  a  lease,  39. 
grant  of  right  of  way  is  an  easement,  39. 
legal  possession  essential  for  a  tenancy,  40. 


i 


INDEX.  891 

[References  are  to  Sections.'\ 
LICENSE— Continued, 

wall  advertisement  a  license,  40. 

exclusive  possession  by  tenant  unnecessary,  40. 

grant  of  right  to  cut  ice,  40. 

grant  of  mining  rights,  41. 

payment  of  consideration  as  test  between  lease  and  license,  42. 

interrupted  and  restricted  use  a  mere  license,  43. 

theater  ticket,  44. 

flowing  of  lands  an  easement,  45.  ' 

LIFE  ESTATE, 

created  by  grant  without  word  "heirs,"  116, 
grant  for  term  of  several  lives,  116. 
interest  ceases  on  death  of  life  tenant,  116. 

LIFE  TENANT, 

bound  to  pay  taxes,  413. 

failure  by,  to  pay  taxes  constitutes  waste,  637. 

right  to  open  and  work  mines,  638. 

leases  granted  by,  apportionment  of  rent  under,  670. 

purchase  of  encumbrance  on  estate  by,  689. 

LIGHT    AND    AIR, 

interference  with  easement  for,  prevented  by  injunction,  106. 
tenant's  right  to,  381. 

interference  with  as  breach  of  covenant  of  quiet  enjoyment,  359. 
artificial,  for  passageways,  619. 

LIMITATION,    STATUTE   OF, 

running  of,  after  disavowal  of  tenancy,  695. 

LODGER, 

becomes  a  tenant  when,  23,  24. 

LOUISIANA, 

recording  leases,  163. 

statute  as  to  notice  to  quit,  292. 

M 

MAINE, 

leasing  by  married  women,  87. 
statute  as  to  yearly  tenancies,  239. 
statute  as  to  notice  to  quit,  293. 

MANURE, 

does  not  belong  to  outgoing  tenant,  573. 
when  made  in  course  of  husbandry,  573. 
manufactured  out  of  eel  grass,  573. 
Maine  doctrine  as  to  sale  of,  on  execution,  573. 
j   .  North  Carolina  rule,  573. 

covenants  as  to  manure,  573. 


892  INDEX. 

[References  are  to  Sections.'] 

MARRIED    WOMEN, 

right  to  grant  and  accept  leases,  87. 

leasing  of  separate  property  belonging  to,  87. 

Mississippi  code  provision,  87. 

Maine  act,  87. 

Indiana  statute,  87. 

dower  interest  incapable  of  being  leased,  87. 

leasehold  estates  of,  pass  to  husband,  88. 

holding  over  after  divorce  does  not  become  tenant  at  sufferance,  225. 

covenant  not  to  sublet  not  broken  by  marriage,  468. 

not  bound  by  estoppel,  687. 

MARYLAND, 

acknowledgment  of  lease  necessary,  72. 

recording  leases,  164. 

statute  as  to  notice  to  quit,  294. 

MASSACHUSETTS, 

statute  as  to  rent  recoverable  from  tenant  at  will,  189. 

tenant  at  sufferance  liable  for  use  and  occupation,  227. 

statute  as  to  tenancy  at  sufferance,  230. 

doctrine  as  to  yearly  tenancies,  240. 

statute  as  to  notice  to  quit,  295. 

forfeiture  for  non-payment  of  rent,  517. 

doctrine  as  to  implied  warranty  of  fitness  of  furnished  house,  578. 

statute  as  to  apportionment  of  rent,  671. 

MECHANIC'S    LIEN, 

for  improvements,  378. 
holder  of,  not  an  assignee,  444. 
purchaser  at,  sale  not  an  assignee,  458. 
entry  to  post  notice  of,  558. 

MERGER  07  LEASE, 

takes  place  on  assignment  to  lessee,  428. 
effect  of  mortgaging  leasehold  to  lessor,  428. 
legal  interest  necessary  to  constitute,  428. 
undivided  interests  will  merge  when,  428. 
sale  on  partition  causes,  when,  428. 
effect  of  subtenancy  on,  429. 
liability  of  subtenant  on  covenants,  429. 
English  statutory  provision,  429. 
election  to  avoid,  429. 

MEMORANDUM, 

in  writing  sufficient  to  satisfy  statute  of  frauds,  156. 
officer's  return  sufficient,  of  assignment,  444. 

MICHIGAN, 

statute  as  to  tenancy  of  sufferance,  230. 
statute  as  to  yearly  tenancies,  241. 


I  INDEX.  893 

[References  are  to  Sections.^ 
MICHIGAN— Contimied. 

statute  as  to  notice  to  quit,  296. 

forfeiture  for  non-payment  of  rent,  518. 

rule  as  to  implied  warranty  of  fitness  of  premises,  576. 

use  and  occupation  maintainable  on  lease  under  seal,  652. 

MINERAL    LANDS, 

forfeiture  of  lease  of,  488. 

MINNESOTA, 

statute  as  to  notice  to  quit,  297. 
forfeiture  for  non-payment  of  rent,  519. 
statutory  liability  for  defects  in  premises,  581. 
abatement  of  rent  under  statute,  681. 

MINES, 

grant  of  right  to  work,  operates  as  lease,*  41. 
right  of  tenant  to  open  and  work  mines,  637. 

MISREPRESENTATION, 

as  to  fitness  of  premises  a  ground  for  liability,  580. 
I    '  as  basis  for  recoupment,  674. 

MISSISSIPPI, 
J  provision  as  to  leases  by  married  women,  87. 

I  statute  as  to  notice  to  quit,  298. 

statutory  duty  of  lessor  to  repair,  393. 

forfeiture  for  non-payment  of  rent,  520. 

attornment  to  stranger  after  judgment  of  eviction,  705. 

MISSOURI, 

leases  by  deed  poll  abolished,  57. 

defense  of  fraud  triable  by  jury,  127. 

statute  as  to  yearly  tenancies,  242. 

statute  on  notice  to  quit,  299. 

statute  against  assignment,  432. 

forfeiture  for  non-payment  of  rent,  521. 

doctrine  as  to  assignment  of  leasehold  by  way  of  mortgage,  458. 

purchase  of  tax  title  by  tenant,  691. 

attornment  to  purchaser  at  foreclosure,  709. 

MONTANA, 

statute  as  to  notice  to  quit,  300. 

MONTH   TO   MONTH   TENANCY, 

See  Tenancy  from  Month  to  Month. 

MORTGAGE, 

or  contract  for  letting,  26. 

foreclosure  of,  on  leasehold  an  assignment,  444. 

of  leasehold  equivalent  to  assignment,  458. 

foreclosure  of,  may  be  shown  to  defeat  landlord's  title,  703. 


894  INDEX. 

[References  are  to  Sections.^ 
MORTGAGEE, 

in  possession  not  a  tenant  of  mortgagor,  27. 

right  to  lease  premises,  94. 

entitled  to  emblements  against  lessee  of  mortgagor,  572. 

as  tenant  bound  by  estoppel,  693. 

of  leasehold,  right  to  remove  fixtures,  723. 

MORTGAGOR, 

in  possession  is  not  a  tenant,  25. 

right  to  lease  premises,  94. 

becomes  tenant  at  sufferance  when,  223. 

lease  by,  gives  no  right  to  emblements,  572. 


N 
NEBRASKA, 

notice  of  intention  of  forfeit  necessary,  485. 

forfeiture  for  non-payment  of  rent,  522. 

doctrine  as  to  liability  for  rent  after  destruction,  678. 

NECESSARIES, 

room  for  infant  lessee  classed  among  when,  96. 

NEGLIGENCE, 

of  tenant  a  question  for  jury,  394. 
contributory,  by  tenant,  594. 
intervening  criminal  act,  596. 
unsafe  repairs,  596. 

by  agent  or  independent  contractor,  597. 
landlord's  duty  as  to  passageways,  614,  615. 
persons  to  whom  duty  extends,  617,  618. 
only  responsible  for  reasonable  care,  619. 
negligent  repairs,  622. 
of  janitor  employed  by  landlord,  623. 
duty  of  tenant  to  use  due  care,  624. 

NEVADA, 

statute  as  to  yearly  tenancies,  243. 
statute  as  to  notice  to  quit,  301. 

NEW    HAMPSHIRE, 

doctrine  as  to  crop  rents,  55. 

statute  as  to  tenancies  from  year  to  year,  244. 

statute  as  to  notice  to  quit,  302. 

forfeiture  for  non-payment  of  rent,  523. 

NEW    JERSEY, 

recording  leases,  163. 
statute  as  to  notice  to  quit,  303. 
forfeiture  for  non-payment  of  rent,  524. 
rule  as  to  emblements,  569. 
abatement  of  rent  under  statute,  681. 


I 


INDEX.  895 

{References  are  to  Sections.l 
NEW    MEXICO, 

follows  English  law  as  to  statute  of  frauds,  150. 

NEW    YORK, 

right  to   bring  summary   process   dependent   on   existence   of   ten- 
ancy, 19. 
rule  as  to  emblements,  32. 

agricultural  lands  leased  for  twelve  years.  111. 
tenancy  at  sufferance,  229. 
statute  as  to  yearly  tenancies,  245. 
statute  as  to  notice  to  quit,  304. 
receiver  vested  with  title  to  leasehold,  443. 
doctrine  as  to  assignment  by  way  of  mortgage,  458. 
forfeiture  for  non-payment  of  rent,  625. 
statute  against  implication  of  covenants,  351. 
rule  of  liability  of  assignees  of  part  of  leasehold,  669. 
statute  as  to  apportionment  of  rent,  6671. 
abatement  of  rent  under  statute,  681. 

NORTH  CAROLINA, 

statute  as  to  cropping  contracts,  56. 
statute  as  to  notice  to  quit,  305. 
forfeiture  for  non-payment  of  rent,  526. 
statute  as  to  division  of  crops,  656. 

NORTH    DAKOTA, 

statute  as  to  notice  to  quit,  306. 

statutory  liability  of  landlord  to  repair,  407. 

forfeiture  for  non-payment  of  rent,  527. 

NOTICE  TO   QUIT, 

nature  of  doctrine,  251. 

necessity  for  notice,  251. 

common-law  rule,  251. 

length  of  notice  in  United  States,  252. 

distinction  based  on  origin  of  tenancy,  252. 

length  of  notice  from  monthly  tenant,  253. 

length  of  notice  from  weekly  tenant,  253. 

as  affected  by  terms  of  letting,  253.  ' 

written  notice  unnecessary  at  common  law,  254. 

rights  of  tenant  at  sufferance  to  notice,  254. 

no  notice  to  terminate  lease  for  time  certain,  255. 

same  rule  at  end  of  extension,  255. 

no  notice  at  end  of  term  provided  for  by  void  agreement,  256. 

when  no  relation  of  landlord  and  tenant  exists,  257. 

after  disclaimer  by  tenant,  257. 

mere  licencee  not  entitled,  257. 
no  substitute  for  statutory  notice,  258. 
waiver  of  notice  by  landlord,  258. 
rights  and  duties  as  to  notice  mutual,  259. 
contrary  rule  by  statute  in  Kansas,  259. 


896  ixDEx. 

[References  are  to  Sections.'i 
NOTICE    TO    QUIT — Continued. 
Sufficiency  of  notice,  260-271. 

must  point  to  time  when  the  term  ends,  260. 

demand  for  immediate  possession  insufficient,  260. 

time  for  quitting  must  be  on  rent  day.  261. 

sufficient  to  name  day  corresponding  to  day  of  letting,  261, 

precise  time  of  expiration,  261. 

no  particular  form  required,  262. 

description  must  identify  premises,  262. 

slight  inaccuracies  not  fatal,  262. 

notice  addressed  to  tenant  in  possession,  263. 

formal  insufficiency  waived  by  repudiation,  264. 
^  authority  of  agent  to  give  notice,  265. 
y^       who  may  give  notice  after  assignment,  266. 

notice  binding  on  undertenants,  266. 
-  notice  should  be  absolute,  267.  fv,  ji 

proposals  for  change  in  rent,  etc.,  267.  '"'  i 

Sunday  contract,  267. 

notice  by  parol  sufficient  at  common  law,  268. 

notices  to  and  from  joint  owners,  269. 

requirements  for  notice  may  be  waived,  270. 

mere  agreement  to  pay  rent  in  advance  not  a  waiver,  270. 

enforcement  of  notice,  271. 

rights  acquired  under  notice  may  be  waived,  271. 
Service  of  notice,  272-276. 

personal  service  unnecessary,  272. 

delivering  copy  to  person  on  premises,  272. 

rule  in  England,  273. 

delivering  copy  to  agent  off  premises,  273. 

mailing  notice  to  tenant,  274. 

posting  notice  in  public  places,  275. 

proof  of  service,  276. 
Statutory  provisions,  277-317. 

Alaska,  277. 

Arizona,  278. 

Arkansas,  279. 

California,  280. 

Colorado.  281. 

Connecticut,  282. 

Delaware,  283. 

District   of   Columbia,   284. 

Georgia,   285. 

Idaho,  286. 

Illinois,  287. 

Indiana.  288. 

Iowa,  289. 

Kansas,  290. 

Kentucky,  291. 

Louisiana,  292. 


INDEX.  897 


[References  are  to  Sections.^ 
NOTICE    TO    QVIT— Continued. 
Maine,  293. 
Maryland,  294. 
Massachusetts,  295. 
Michigan,  296. 
Minnesota,  297. 
Mississippi,  298. 
Missouri,  299. 
Montana,  300. 
Nevada,  301. 
New    Hampshire,    302. 
New   Jersey,    303. 
New  York,  304. 
North  Carolina,  305. 
North  Dakota,  306. 
Ohio,  307. 
Oregon,  308. 

Oklahoma  Territory,   309. 
Pennsylvania,   310. 
Rhode  Island,  311. 
South  Carolina,  312. 
South    Dakota,    313. 
Virginia,  314. 
Washington,  315. 
West  Virginia,  316. 
Wisconsin,  317. 

NUISANCE  ON  ADJOINING  PREMISES, 
as  eviction,  360. 

NUISANCE  ON  LEASED  PREMISES, 

primary  liability  for  rests  on  occupier,  599. 

"occupier"  defined,  599. 

landlord  liable  when,  599. 

statement  of  general  rule,  599. 

effect  of  technical  outstanding  title,  599. 

injuries  on  abutting  sidewalks,  600. 

defective  scuttle  or  coal  hole,  600. 
general  supervision  a  basis  of  liability,  600. 
injuries  from  falling  articles,  601. 

capstone,  window-blind,  awning,  601. 
falling  snow  and  ice,  602. 

general  supervision  retained  by  lessor,  602. 
landlord  and  tenant  both  responsible  when,  603. 
necessity  for  request  to  abate  nuisance,  604. 
lessor  is  not  liable  when,  605. 
improper  use  does  not  make  lessor  liable,  606. 
lessor  is  liable  when,  607. 
injuries  on  public  wharves,  608. 
Jones  L.  &  T.— 32 


898  INDEX. 

[References  are  to  Sections.] 

NUISANCE    ON   LEASED    PREMISES— Continued. 
collapse  of  building,  609. 
statutory  nuisances,  610. 
no  criminal  liability  on  lessor,  610. 
what  constitutes  a  reletting  of  premises,  611. 


OCCUPIER, 

defined,  599. 

OHIO, 

acknowledgment  of  lease  necessary,  72. 

testamentary  law  as  to  permanent  leaseholds,  171. 

rule  as  to  notice  affected  by  origin  of  yearly  tenancy,  252. 

statutory  provision  as  to  notice  to  quit,  307. 

right  of  assignee  to  sue  for  rent,  658. 

abatement  of  rent  under  statute,  681. 

OKLAHOMA, 

statute  as  to  yearly  tenancies,  246. 
statute  as  to  notice  to  quit,  309. 
forfeiture  for  non-payment  of  rent,  529. 

ORDINANCE, 

forbidding  wooden  buildings,  399. 

OREGON, 

statute  as  to  notice  to  quit,  308. 
forfeiture  for  non-payment  of  rent,  529. 

P 

PAROL  AGREEMENTS, 

See  Agreements  Collateeal  to  Lease. 

PAROL    EVIDENCE, 

not  admissible  to  vary  written  lease,  130. 
to  show  lease  was  an  assignment,  132. 

PAROL    LEASE, 

not  absolutely  void,  148. 

exception  of,  for  short  term  from  statute  of  frauds,  148. 

requirements  as  to  value  of  rent  reserved,  149. 

extent  of  validity  of,  for  short  term,  153. 

doctrine  of  South  Carolina  and  Maryland,  153. 

duration  of  term  of,  154. 

renewal  agreement  as  part  of,  154. 

whether  void  only  as  to  excess,  155. 

ratification,  156. 

parol  agreement  to  lease  distinguished  from,  162. 

tenancy  at  will  created  by  entry  and  occupation  under,  180. 


INDEX.  899 


i 


[References  are  to  Sections.} 
PAROL    I.EASE— Continued. 

governs  terms  of  holding,  199. 

occupant  liable  for  rent  reserved  in,  199. 

action  to  recover  rent  on,  use  and  occupation,  200. 

effective  to  give  term  definite  end,  217. 

can  be  assigned  by  parol,  441. 

PARTIES  TO  LEASES, 

general  question  of  authority  and  capacity,  84. 

ownership  in  fee  unnecessary,  84. 

joint  lease  by  owners  in  severalty,  84. 

estoppels  distinguished,  84. 

persons  disseised  and  dispossessed,  85. 

what  constitutes  adverse  holding,  85. 

California  code  provision,  85. 

tenant  in  common,  86. 

partners,  86. 

married  women,  87. 

separte  property,  87. 
Mississippi  code  provision,  87. 
Maine  act,  87. 
Indiana  statute,  87. 
holder  of  dower  or  curtesy,  87. 
husband,  88. 
community  lands,  88. 
guardians,  89,  90. 
trustees,  91. 
infants,  92,  95,  96. 
executors  and  administrators,  93. 
mortgagor  and  mortgagee,  94. 

PARTNERS, 

authority  to  lease  partnership  land,  86. 
execution  of  covenants  by,  320. 

PART   PERFORMANCE, 

renders  parol  lease  valid,  159. 

distinction  between  law  and  equity,  159. 

what  constitutes,  159. 

acts  must  refer  to  agreement,  160. 

delivery  of  possession,  160. 

making  valuable  improvements,  160. 

part  payment,  160. 

Alabama  statute,  161. 

of  assignment,  151,  441. 

PASSAGEWAYS, 

duty  of  landlord  as  to  common,  in  tenement,  614,  615. 
defective  carpeting  in,  621. 


900  INDEX. 

• 

[References  are  to  Sections.'\ 
PENNSYLVANIA, 

statute  as  to  notice  to  quit,  310. 
forfeiture  for  non-payment  of  rent,  530. 

PERPETUITIES, 

rule  against,  puts  no  limits  on  lease,  111. 

PERSONAL    INJURIES, 

from  defects  in  leased  premises,  576. 

assumption  of  risk,  576. 

rule  of  caveat  emptor  applies  when,  579. 

fraud  as  a  basis  of  liability,  580. 

concealed  defects  not  discoverable  on  examination,  581. 

Minnesota  statute,  581. 

landlord's  duty  to  learn  of  defects,  582. 

duty  to  warn  againft  infection,  584. 

rights  of  guests  of  the  tenant,  585. 

Georgia  statute,  587. 

PERSONAL    PROPERTY, 

letting  of,  for  a  term,  10. 

joint  lease  of  real  and  personal  property,  10. 

apportionment  of  rent  in  case  of  destruction,  10,  669. 

POSSESSION   OF   LEASED   PREMISES, 

transfer  of,  does  not  change  agreement  into  lease,  146. 

valid  as  evidence  showing  actual  demise,  146. 

shows  waiver  of  formal  lease,  146. 

covenant  of  assignor  to  deliver,  427. 

covenant  to  deliver,  not  apportioned,  460. 

duty  of  tenant  to  restore  at  end  of  term,  554. 

covenants  to  deliver  up  possession,  554. 

duty  to  remove  sub-tenants,  554. 

retained  by  agreement  for  short  time  after  end  of  term,  555. 

does  not  become  adverse,  555. 
what  constitutes  continued  occupation,  555. 
duty  to  return  keys,  555. 

effect  of  leaving  improvements  on  premises,  555. 

failure  to  pay  for  improvements  does  not  justify  continued  posses- 
sion, 555. 
continuing  to  hold  possession  as  mortgagee,  555. 
landlord's  right  to  regain  by  force,  556. 
forcible  entry  defined,  557. 
civil  liability  of  landlord  for  use  of  force,  558. 
trespass  for  assault  and  battery  against  landlord.  559. 
forcible  invasion  of  tenants  legal  possession,  560. 
statutory  remedy  exclusive  one  in  some  states,  361. 
Actions  relative  to  possession.  640-647. 

actual  or  constructive  possession  necessary  to  support  trespass,  640 
trespass  on  the  case  without  possession,  641. 
right  of  action  as  between  landlord  and  tenant,  642. 


INDEX.  901 

[References  are  to  Sections.l 
POSSESSION    OF    LEASED    PREMISES— Continued. 
taking  on  eminent  domain,  643. 

extent  of  reversioner's  interest  to  appear  in  pleading,  644. 
injury  to  growing  crop,  645. 
tenants  at  will  and  by  sufferance,  646. 
trespass  by  landlord  against  tenant,  647. 
by  tenant  against  landlord,  647. 

POSTING, 

notice  to  quit  in  public  places,  275. 

POWER  OF  ATTORNEY, 

to  confess  judgment  for  rent,  664. 

PROSTITUTION, 

leasing  premises  for  purpose  of,  122. 

a  statutory  offense  in  Illinois,  122. 

liability  of  guardian,  122. 

use  of  adjoining  tenement  for  purpose  of,  360. 

PUBLIC    ENEMIES, 

liability  for  rent  after  destruction  by  675,  678. 

PURCHASER    IN    POSSESSION, 
is  not  a  tenant,  29. 
remedies  of  vendor,  29. 
entry  under  parol  contract  to  purchase,  29. 

under  contract  absolutely  void,  29. 
right  to  possession  similar  to  that  of  tenant  at  will,  30. 
relation  of  parties  after  default  in  contract,  30. 
tenant  buying  premises  ceases  to  be  tenant,  31. 
assignment  by  vendor  creates  no  new  tenancy,  31. 
vendee  in  possession  entitled  to  emblements,  32. 
vendor  continuing  in  possession  is  not  tenant,  33. 
character  of  occupation  determined  by  condition  subsequent,  34. 
proof  of  change  in  relationship,  35. 
becomes  tenant  at  sufferance  after  default,  224. 


Q 

QUIET    ENJOYMENT, 

covenants  for,  see  Covenants. 


R 
"RAILROAD    PURPOSES," 

means  public  purposes,  114. 

RATIFICATION, 

of  agreement  reducing  rent,  135. 
of  lease  by  agent,  157. 


902  INDEX. 

{References  are  to  Sections. I 
RECEIVER, 

in  possession  of  leased  premises  not  an  assignee,  443. 
estoppel  to  deny  title  of,  683. 

RECORDING    LEASES, 

statutory  provisions,  163. 

New  Jersey  rule,  163. 

Louisiana  doctrine,  163. 

unrecorded  lease  not  valid  except  as  to  excess,  163. 

requirement  of  possession  under  unrecorded  lease,  163. 

lease  of  growing  trees,  163. 

validity  of  unrecorded  instruments,  164. 

good  between  parties  and  purchasers  with  notice,  164. 

Maryland  rule,  164. 

transfer  of  possession  as  a  substitute,  164. 

place  of  record,  165. 

record  of  sub-lease,  166. 

computing  length  of  term,  167. 

recording  assignment,  438,  456. 

RECOUPMENT, 

See  Set-off  and  Recoupment. 

REFORMATION, 

of  lease,  allowed  when,  70. 
loss  of  right  by  laches,  70. 
third  persons  affected  with  knowledge,  70. 

"RELET," 

meaning  of  term  defined,  69a. 

what  constitutes  reletting  in  periodical  tenancy,  611. 

RENEWAL    OF    LEASE, 

a  valid  and  usual  privilege,  336. 

lease  for  one  year  continued  from  year  to  year,  336. 

distinction  between  renewal  and  extension,  337. 

necessity  for  new  lease,  338. 

renewal  notice  required  before  end  of  original  term,  339. 

no  notice  necessary  in  case  of  extension,  340. 

compliance  with  provisions  as  to  notice,  340,  342. 

effect  of  holding  over,  340. 

payment  of  rent  as  evidence  of  extension,  340. 

right  of  lessor  to  call  for  election,  341. 

effect  of  statement  of  intention  by  tenant,  341. 

sufficiency  of  terms  of  covenant,  343. 

perpetual  renewal  not  ordinarily  implied,  343. 

not  applicable  to  subdivisions  of  leasehold,  344. 

parties  bound  and  parties  entitled,  345. 

fixing  rent  in  renewal  lease  by  arbitration,  346. 

conditional  covenant  to  renew,  347. 

happening  of  contingency,  348. 


INDEX.  903 

[References  are  to  Sections.'} 
RENEWAL    OF    LEASE— Con^inwed. 

assignment  of  right  to  renew,  431. 

effect  of,  on  right  to  remove  fixtures,  718. 

right  of  removal  under  agreement  not  lost  by,  720,  721. 

RENT, 

reservation  of  not  essential  to  tenancy,  6. 
payment  of,  as  proof  of  tenancy,  12. 
recoverable  from  tenant  at  will  after  sale,  189. 
when  due  under  year  to  year  tenancy,  195. 
occupant  under  invalid  lease  liable  for,  199. 
form  of  action  is  use  and  occupation,  200. 
acceptance  of,  implies  assent  to  holding  over,  204. 
change  in  amount  on  holding  over,  213. 
penalty  of  double  rent,  214. 
Non-payment  of  rent  as  ground  for  forfeiture,  502-505. 
special  provision  necessary  at  common  law,  502. 
sufficiency  of  distress  on  premises,  502. 
necessity  for  a  demand,  503. 
time  and  place  of  demand,  503. 
amount  to  be  demanded,  503. 
no  technical  form  for  demand,  503. 

demand  need  not  precede  action  for  use  and  occupation,  503. 
sufficiency  of  demand  by  assignee,  503. 
express  stipulation  dispensing  with  demand,  504. 
what  constitutes  such  a  stipulation,  504. 
damages  from  trespass  by  landlord  not  a  set-off,  505. 
payment  of  rent  in  labor  or  materials,  505. 
Statutory  provisions  for  forfeiture  on  non-payment. 
Arizona,  506. 
Arkansas,  507. 
California,  508. 
Colorado,  509. 
Connecticut,  510. 
Florida,  511. 
Georgia,  512. 
Illinois,  513. 

Indiana,  514.  " 

Iowa,   515. 
Kansas,  516 
Massachusetts,  517. 
Michigan,  518. 
Minnesota,  519. 
Mississippi,  520. 
Missouri,  521. 
Nebraska,  522. 
New  Hampshire,  523. 
New  Jersey,  524. 
New  York,  525. 


904  INDEX. 

[References  are  to  Sections.} 
RENT — Continued. 

North  Carolina,  526. 

North   Dakota,   527. 
'     Oklahoma,  529. 

Oregon,  528. 

Pennsylvania,  530. 

Rhode  Island,  531. 

South  Carolina,  532. 

Vermont,   533. 

Virginia,  534. 

West  Virginia,  535. 

"Wisconsin,  536. 

Wyoming,  537. 
Nature  of  rent,  648-649. 

rent  defined,  648. 

kinds  of  rent,  648. 

fee  farm  rent,  649. 

condition  for  forfeiture  for  non-payment  of  rent  not  repugnant  to 
grant,  649. 
Actions  to  recover  rent,  650-666. 

remedy  of  distress,  650. 

debt  for  rent  maintainable  when,  650. 

debt  for  reasonable  value,  650. 

origin  of  indebitatus  assumpsit  for  use  and  occupation,  650. 
.,  nature  of  action,  651. 

trespass  for  mesne,  profits,  651,  653. 

use  and  occupation  will  not  lie  for  a  tortious  entry,  651. 

action  for  money  had  and  received  lies  against  trespasser  in  cer- 
tain cases,  651. 

void  lease  proper  to  show  value  of  rent,  651. 

use  and  occupation  limited  to  agreements  not  under  seal,  652. 

contrary  rule  in  Michigan,  652. 

relation  of  landlord  and  tenant  necessary  to  support  use  and  occu- 
pation, 654. 

implication  of  tenancy  from  circumstances  may  be  rebutted,  655. 

what  is  sufficient  to  rebut  implication,  655. 

cestui  que  trust  cannot  maintain  use  and  occupation,  655. 

recovery  of  crop  rent  by  action  at  law,  656. 

crops  belong  to  year  when  they  are  harvested,  656. 

North  Carolina  statute  as  to  division,  656. 
'-.  liability  of  tenant  in  common  to  use  and  occupation,  657. 

\  indebitatus  assumpsit  in  place  of  account,  657. 

right  of  tenant  in  common  to  sue  for  rent,  657. 

who  are  entitled  to  sue  for  rent,  658. 

Ohio  doctrine,  658. 

liability  of  sub-tenant  for  rent,  659. 

rights  and  liabilities  of  undisclosed  principal,  660. 

Illinois  statute  as  to  form  of  action,  660. 

no  debt  arises  till  time  for  paying  rent,  661. 


INDEX.  905 

[References  are  to  Sections.} 
RENT — Continued. 

special  assumpsit  on  express  agreement,  661. 

entry  necessary  to  sustain  use  and  occupation,  661. 

rent  not  due  till  end  of  term,  661. 

agreements  as  to  time  for  payment  construed,  661. 

rent  payable  on  a  holiday,  661. 

tenant  has  entire  day  to  pay  rent,  661. 

contracts  of  suretyship  for  rent,  662. 

no  tenancy  between  surety  and  lessor,  662. 

discharge  of  surety  by  laches,  662. 

extent  of  surety's  obligation,  662. 

acceptance  of  services  in  lieu  of  money,  663. 

of  crop  rent  in  lieu  of  cash  rent,  663. 
erroneous  and  conflicting  reversations  of  rent,  663. 
agreements  for  reducing  rent,  663. 
power  of  attorney  to  confess  judgment  for  rent,  664. 

when  premises  are  put  to  illegal  use,  664. 
defenses  against  actions  for  rent,  665. 
Illinois  statute  as  to  want  of  consideration,  665. 
Recovery  of  interest  on  rent,  666. 
not  included  in  distress,  666. 
Virginia  doctrine,  666. 
statutes  in  Illinois  and  Kentucky,  666. 
rents  and  profits  due  mortgagor  bear  interest  when,  666. 
Apportionment  of  rent,  667-671. 
general  rule,  667. 

no  redress  for  lessor  ending  tenancy  before  rent  day,  667. 
tenancy  ended  by  entry  of  mortgagee,  667. 
tenancy  at  will  ended  by  transfer,  667. 
apportionment  is  for  benefit  of  owners  of  rent,  667. 
on  sale  of  part  of  reversion,  668. 
on  death  of  lessor,  668. 

wrong  doer  cannot  claim  benefit  of  apportionment,  668. 
transfer  of  undivided  interest,  668. 
transferee  may  sue  in  covenant,  668. 
jury  the  proper  tribunal  to  make,  668. 
transfer  by  lessee  as  occasion  for,  669. 
surrender  of  part  by  lessee,  669. 
eviction  by  title  paramount,  669. 

value  not  quantity  the  basis  for  apportionment,  669. 
possessory  right  not  actual  possession  the  basis,  669. 
lease  covering  land  and  chattels,  669. 
past  due  rent  never  apportioned,  670. 

not  discharged  by  quitclaim  deed,  670. 
obligation  to  pay  rent  not  apportioned,  670. 
leases  granted  by  life  tenant,  670. 
California  statute  against  double  liability,  670. 
notice  to  tenant  of  transfer,  670. 

South  Dakota  statute  as  to  mortgage  foreclosure,  670. 
statutory  provisions  as  to  apportionment,  671. 


906  INDEX. 

[References  are  to  Sections.'] 
RENT — Continued. 

Set-oft  and  recoupment,  672-674. 

cost  of  repairs  to  be  paid  for  by  landlord,  672. 

measure  of  damage  for  failure  to  repair,  672. 

California  statute  as  to  repairs,  672. 

for  failure  to  build  according  to  specifications,  672. 

right  to  abandon  not  co-extensive  with  recoupment,  673. 

election  to  treat  covenants  as  independent,  673. 

waiver  of  right  to  insist  on  repairs,  673. 

recoupment  distinguished  from  set-off,  673. 

misrepresentation  as  a  basis  for  recoupment,  674. 

landlord  not  an  insurer,  674. 
Abatement  of  rent,  675-681. 

destruction  by  fire  no  ground  for,  675. 

origin  and  basis  of  rule,  675. 

effect  of  seal,  675. 

injury  by  tempest  and  flood,  675. 

failure  of  water  supply,  675. 

acts  of  landlord  after  destruction,  675. 

destruction  prior  to  commencement  of  term,  675. 

application  of  insurance  money  after  fire,  676. 
Kansas  doctrine  as  to,  676. 

lessor's  building  covenant  not  revived  by  destruction,  676. 

destruction  of  entire  subject  matter  abates  rent,  677. 

when  interest  in  land  passes  to  lessee,  677. 

voluntary  advance  payment  of  rent,  677. 

exception  to  general  rule  not  recognized  in  Kentucky,  677. 

Nebraska  doctrine  as  to  continued  liability  for  rent  after  destruc- 
tion, 678. 

destruction  by  public  enemies,  678. 

agreements  for  abatement  in  case  of  destruction,  679. 

lease  not  terminated  by,  679. 

trifling  injuries  disregarded,  679. 

election  to  disregard  injuries,  679. 

what  constitutes  a  "casualty,"  679. 

lessor's  covenant  to  repair  does  not  abate  rent,  679. 

taking  on  eminent  domain,  680. 
■  tearing  down  dangerous  building,  680. 

statutory  modifications  of  common-law  rule,  681. 

REPAIRS, 

Covenant  hy  lessee  to  make.  391-403. 

regarded  as  usual  covenant  in  lease,  391. 
sufficiency  of  oral  undertaking,  391. 
extent  of  liability  under,  391. 
sub-tenant's  covenant  to  repair,  391. 
binds  lessee  to  repair  inevitable  accident,  392. 

basis  of  such  liability,  392,  393. 
express  qualfications  of  liability,  392. 


INDEX.  90  T 

[References  are  to  Sections.^ 
REPAIRS— Continued. 

liability  affected  by  form  of  covenant,  392,  393. 

agreement  to  deliver  in  good  order  and  condition,  393. 

Mississippi  code  provison,  393. 

liability  affected  by  nature  of  property,  393. 

"unavoidable  casualty"  defined,  394. 

negligence  of  tenant  a  question  for  jury,  394. 

"damage  by  the  elements"  defined,  395. 

"external  parts"  of  premises  defined,  396. 

covenant  refers  to  condition  of  premises  at  time  of  letting,  397,  402. 

lessee  to  rebuild  after  condemnation  by  authorities,  397. 

extent  of  repairs  required  by  covenant,  397. 

"habitable"  defined,  397. 

"necessary  repairs"  defined,  397. 

lessee  has  no  claim  on  insurance,  398. 

effect  of  ordinance  forbidding  wooden  buildings,  399. 

duty  to  maintain  machinery,  400. 

painting,  papering  and  decorating,  401. 

right  of  action  for  failure  to  return  in  good  condition  accrues  when, 
403. 

what  constitutes  a  continuing  covenant  to  repair,  403. 
Obligation  on  landlord  to  make  repairs,  404-410,  588-589. 

express  contract  necessary  to  create  obligation,  404,  588. 

what  amounts  to  an  agreement  to  repair,  404,  589. 

effect  of  voluntary  repairs  by  landlord,  404,  590. 

insurance  money  need  not  be  used  in  rebuilding,  405. 

right  of  landlord  to  enter  after  destruction,  405. 

California  statute  as  to  repairs,  406. 

statutory  provisions  in  the  Dakotas,  407. 

extent  of  obligation  under  covenant  to  repair,  408. 
under  covenant  to  make  outside  repairs,  408. 

notice  to  landlord  of  lack  of  repair,  409. 
when  lack  of  repair  is  visible,  409. 

remedies  of  tenant  for  breach  of  covenant  to  repair,  410. 

measure  of  damages  for  breach,  410. 
Liability  imposed  by  lessor's  agreement  to  repair,  588-595. 

no  duty  to  repair  in  absence  of  agreement,  588. 

clear  language  necessary  to  create  obligation,  589. 

extent  of  statutory  duty  to  repair  fire  escapes,  589. 

payment  by  landlord  for  repairs  made  by  tenant,  590. 

voluntary  promise  to  pay  for  repairs,  590. 

no  duty  to  repair  inevitable  accidents,  590. 

exempting  lessee  does  not  bind  lessor,  591. 

landlord's  liability  rests  on  breach  of  contract,  592. 

measure  of  damages  recoverable,  592. 

damages  for  personal  injuries  are  too  remote,  592. 

no  recovery  in  tort  allowed,  592. 

notice  to  landlord  of  need  of  repairs,  593. 

tenant's  contributory  negligence  protects  landlord,  594. 

rights  conferred  on  third  persons  by  such  agreement,  595. 


908  INDEX. 

[References  are  to  Sections.l 
REPAIRS — Continued. 

Liability  for  unsafe  repairs,  596-598. 
when  made  by  landlord  in  person,  596. 

by  agent  or  independent  contractor,  597. 
non-performance  of  voluntary  promise  to  repair,  598. 
See  also.  Defects  in  Demised  Premises,  and  Fitness. 

REVERSION, 

transferred  by  deed,  424. 

rent  excepted  from  grant  of,  425. 

injury  to,  entitles  lessor  to  sue  for  damages,  641,  644. 

year  to  year  tenancy  not  affected  by  transfer  of,  195. 

month  to  month  tenancy  not  affected  by  transfer  of,  219. 

RESERVATIONS  AND  EXCEPTIONS, 
in  leases,  63. 

thing  specifically  granted  cannot  be  excepted,  63. 
public  roads  and  lots  designated  by  number,  63. 
validity  of  reservation,  110. 
takes  effect  as  condition, subsequent,  110. 

RHODE  ISLAND, 

tenancy  by  sufferance  how  created,  225. 
doctrine  as  to  tenancy  by  sufferance,  230, 
doctrine  as  to  yearly  tenancies,  247. 
statute  as  to  notice  to  quit,  311. 
forfeiture  for  non-payment  of  rent,  531. 

RIGHT  OF  WAY, 

constitutes  an  easement,  39. 
covenant  for,  319. 

RIPARIAN  BOUNDARIES, 

of  leasehold  property,  109. 
right  to  accretions,  109. 

ROYALTY, 

covenant  for,  319. 

RUNNING  OF  COVENANTS, 

See  Covenants. 


S 
SALE  OF  LEASED  PREMISES, 

under  provision  in  lease,  114,  387. 
time  for  exercise  of  privilege,  387. 
right  to  end  term  by  sale,  388. 
right  of  lessee  to  quit  on  sale,  388. 
bona  fides  required,  388. 
ordinary  effect  of  sale,  427. 


INDEX.  909 

[References  are  to  Sections.] 
SALE    OF    LEASED    PREMISES— Continued. 

on  execution  operates  as  assignment,  422,  444,  703. 

return  of  officer,  sufficient  memorandum,  444. 

passes  subject  to  equities,  444. 
on  foreclosure  of  mortgage,  444. 
decree  of  sale  on  lien  judgment,  444. 
chancery  decree  for  sale,  444. 
on  credit,  not  an  assignable  right,  454. 
to  lessee  ends  condition  against  subletting,  464. 
effect  of  sale  of  leasehold  on  execution,  422,  703. 
on  execution  not  a  breach  of  condition  not  to  assign,  466. 
of  leasehold  on  partition,  428. 
decree  of,  on  lien  judgment,  444. 

covenant  as  to,  of  premises  valid  and  enforceable,  387. 
nature  of  such  obligation,  387. 
time  of  cunsummation  of  sale,  387. 
right  to  end  term  by  sale,  388. 

of  lessee  to  quit  on  sale,  388. 
bona  fide  sale  required,  388. 

covenant  to  sell  to  lessee  passes  to  assignee,  454. 
See  also  Assignment. 
SALT  WELLS, 

no  implied  covenant  as  to  capacity,  574. 

SCENIC  RAILWAY, 

removable  as  fixture,  725. 

SEAL, 

necessary  on  lease  when,  74. 
Delaware  statute,  74. 
by  joint  covenantors,  320. 
necessary  on  assignment  when,  439. 

SERVANT, 

occupying  master's  house  is  not  tenant,  20. 

relation  of  parties  after  termination  of  employment,  20. 

may  be  tenant  of  his  master,  21. 

as  tenant  at  will  on  contingency,  170. 

SERVICES, 

of  laborer  paid  for  by  part  of  crop,  49. 
accepted  in  place  of  money  rent,  663. 

SET-OFF  AND  RECOUPMENT, 
cost  of  repairs,  672. 

measure  of  damage  for  failure  to  repair,  672. 
California  statute  as  to  repairs,  672. 
for  failure  to  build  according  to  specifications,  672. 
right  to  abandon  not  co-extensive  with  recoupment,  673. 
waiver  of  right  to  insist  on  repairs,  673. 


910  INDEX. 

[References  are  to  Sections.] 
SET-OFF    AND    RECOUPMENT— Con^inMCcZ. 

recoupment  distinguished  from  set-off,  673. 
misrepresentation  as  a  basis  for  recoupment,  674. 
landlord  not  an  insurer,  674. 

SHARES,  LETTING  ON, 

See  Crop  Rents  and  Cropping  Contracts. 

SIDEWALKS, 

liability  for  injuries  occurring  on,  600-602. 

SIGNATURE, 

of  lessor  to  lease  necessary,  75. 

leases  drawn  in  duplicate,  75. 

errors  in  signature,  76. 

of  lessee  not  necessary,  77. 

indenture  taking  effect  as  deed  poll  for  lack  of,  by  lessee,  78. 

form  of  action  on  unsigned  lease,  80. 

SIGNS, 

on  a  wall  not  a  leasing,  40. 

lessee's  right  to  place,  on  outside  wall,  108. 

placing,  on  walls  not  a  subletting,  468. 

SNOW  AND  ICE, 

falling  on  traveller  along  highway,  602. 
on  roof  of  tenement,  603. 
on  steps  of  tenement,  619. 

SOUTH  CAROLINA, 

statute  as  to  yearly  tenancies,  248. 
statute  as  to  notice  to  quit,  312. 
forfeiture  for  non-payment  of  rent,  532. 

SOUTH  DAKOTA, 

statute  as  to  notice  to  quit,  313. 

ctatutory  liability  of  landlord  to  repair,  407. 

statute  as  to  rent  after  mortgage  sale,  670. 

SPECIFIC  PERFORMANCE, 

See  Equity. 
SUBJECT  MATTER, 

capable  of  demise,  9. 

right  to  fish  and  to  cut  ice,  9. 

timber  grass  and  berries,  9. 

franchise  and  public  rights,  9. 

right  to  flow  land,  9. 

where  chattels  are  let  for  a  term,  10. 

no  lease  of  dower  or  curtesy,  87. 

destruction  of,  abates  rent,  677. 


INDEX.  911 

[References  are  to  Sections.} 
SUB-LEASE, 

record  of,  166. 

effective  to  give  notice  when,  166. 

how  affected  by  assignment  of  reversion,  425. 

effect  of  merger  on,  429. 

SUB-LETTING, 

not  ground  for  entry  by  landlord,  431. 
for  full  term  an  assignment,  446. 

taking  effect  as  both  under  lease  and  assignment,  446. 
sub-tenant  bound  to  know  terms  of  original  lease,  456. 
Conditions  against  sub-letting,  464-473. 
not  usual  covenant  in  lease,  464. 
construction  of  such  provisions,  464. 
enforced  by  injunction,  464. 
sale  to  lessee  terminates,  464. 
entry  upon  sub-tenant,  464. 
value  of  term  depends  upon  assignability,  464. 
not  broken  by  transfer  by  operation  of  law,  466. 

sale  on  execution,  466. 

bankruptcy  and  insolvency,  466. 

general  assignments,  466. 
not  a  breach  of  covenant  not  to  assign,  467. 
what  language  forbids  sub-letting,  467. 
what  constitutes  a  sub-letting,  468. 
grant  of  license  net  a  breach,  468. 
advertising  sign,  468. 

provision  not  "to  sub-let  the  whole  or  assign,"  468. 
joint  lessee  as  assignee,  468. 
servant  in  charge,  468. 

marriage  of  lessee  as  breach  of  covenant,  468. 
change  in  business  relations,  469. 
rule  in  Dumpor's  case,  470,  471. 
special  license  to  assign  or  sub-let,  472. 
estoppel  in  favor  of  sub-tenant,  473. 
mere  'tolerance  of  a  sub-letting,  473. 
not  a  continuing  act  of  forfeiture,  501. 

SUB-TENANTS, 

covenant  by,  to  repair,  391. 

effect  of  merger  upon,  429.  r 

liability  of,  on  covenants  in  lease,  429. 

English  statute  covering  such  cases,  429. 

distinguished  from  assignee,  445. 

insolvency  of  original  lessee,  445. 

entry  upon,  for  breach  of  condition  against  sub-letting,  464. 

acts  of,  as  ground  for  forfeiture,  489. 

statutory  forfeiture  for  illegal  acts  by,  489. 

duty  of  lessee  to  remove,  at  end  of  term,  554. 

liability  of,  for  rent,  659. 


912  INDEX. 

[References  are  to  Sections.'] 
SUFFERANCE, 

See  Tenancy  by  Sufferance, 

SUMMARY  PROCESS, 

distinguished  from  forcible  entry  and  detainer,  562. 
title  to  property  cannot  be  litigated  in,  563. 
form  of  judgment  in,  566. 

SUNDAY, 

leases  executed  on,  61. 

validity  of  renewal  contract  made  on,  267. 

rent  falling  due  on  Sunday,  661. 

SURETY, 

lessee  becomes,  for  assignee,  449. 

for  lessee  not  discharged  by  assignment,  453. 

contract  of,  does  not  run  with  land,  333. 

contract  of,  must  be  based  on  consideration,  662. 

no  tenancy  between  surety  and  lessor,  662. 

discharge  of  surety  by  laches,  662. 

extent  of  surety's  obligation,  662. 

SURRENDER, 

is  yielding  up  of  particular  estate  to  estate  in  reversion,  538. 

writing  required  by  statute  of  frauds,  538. 

seal  not  required  for  valid  surrender,  538. 

oral  agreement  executed  is  valid,  538. 

term  created  by  parol  may  be  surrendered  by  parol,  538. 

by  express  words  or  implied  from  conduct,  539. 

mere  abandonment  not  a  surrender,  539. 

duty  of  landlord  to  relet  after  abandonment,  539. 

effected  by  executed  agreement,  540. 

landlord's  resumption  of  abandoned  premises,  540. 

what  constitutes  transfer  of  possession,  540. 

cancellation  and  destruction  of  lease,  541. 

substitution  of  a  new  lease,  542. 

parol  lease  substituted  for  written  one,  542. 

acceptance  of  rent  directly  from  under-tenant,  543. 

second  lease  to  another  person,  543. 

agreement  may  be  implied,  543. 

reversionary  interest  as  subject-matter  of  surrender,  544. 

effect  of  change  in  terms  of  existing  lease,  545. 

leases  in  futuro  not  capable  of  surrender,  546. 

contrary  doctrine  in  Illinois,  546. 

abandonment  and  reentry  by  tenant,  547. 

landlord's  right  to  gather  abandoned  crops,  547. 

effect  of  death  of  tenant,  547. 

acceptance  of  key  by  landlord,  548. 

repairs  on  abandoned  premises  by  landlord,  548,  549. 

reletting  by  landlord  after  abandonment,  549. 

notice  of  continued  liability  to  tenant,  550. 


INDEX.  913 


[References  are  to  Sections.'i 
SURRENDER— Continued. 

evidence  of  intention  to  hold  tenant,  550. 
consent  of  tenant  to  reletting  implied,  551. 
right  of  sub-tenant  not  divested  bj'^  surrender,  552. 
jury  to  decide  about  agreements  for  surrender,  553. 


T 

TAXES  AND  ASSESSMENTS, 

covenant  to  pay,  runs  with  land,  411. 

lessee  paying  may  recover  from  assignee,  411. 

enforcement  of  covenant  by  grantee  of  reversion,  411. 

form  of  the  covenant,  411. 

not  paid  as  part  of  rent,  411. 

liability  for,  in  absence  of  agreement,  412. 

new  buildings  erected  by  tenant,  412. 

exempt  property,  412. 

statutory  duty  of  tenant  to  pay,  413. 

recovery  back  of  money  so  paid,  413. 

how  affected  by  special  agreement,  413. 

responsibility  of  life  tenant,  413. 

water  rate  not  a  tax  or  assessment,  414. 

landlord  not  bound  to  pay  water  rates,  414. 

implication  of  agreement  to  pay  water  rate,  414. 

tenant's  covenant  to  pay  water  rate,  414. 

construction  of  covenant  to  pay  taxes,  415. 

special  assessments  included  when,  415. 

license  fee  for  lessor  not  payable  by  lessee,  415. 

apportionment  of  taxes,  416. 

levy  distinguished  from  assessment,  417. 

liability  for  taxes  not  payable  till  end  of  term,  417. 

taxable  year  defined,  317. 

invalid  taxes  not  included  in  covenant,  318. 

convenantor  not  released  by  destruction  of  premises,  419. 

what  constitutes  a  breach  of  such  covenant,  420. 

prior  payment  by  lessor  before  suit  not  necessary,  420. 

necessity  for  demand,  420. 

damages  for  breach  of  covenant,  420. 

assignee's  liability  for,  455. 

life  tenant's  failure  to  pay,  constitutes  waste,  637. 

purchase  of  premises  sold  for,  690,  703. 

attornment  to  holder  of  tax  title,  709. 

Arkansas  doctrine,  690. 

Kansas  and  Missouri  doctrine,  690. 


TEMPEST, 

injury  by  does  not  abate  rent,  675. 

Jones  L.  &  T.— 33 


914  INDEX, 

[References  are  to  Sections."] 
TENANCY, 

created  by  contract,  1. 

definitions,  1. 

occupation  must  be  adverse,  2. 

adverse  holding  changed  to  tenancy,  2. 

injunction  bond  creating  quasi  tenancy,  2. 

lawful  occupancy  raises  what  inference  of,  3. 

rebuttal  of  such  inference,  3. 

trustee  holding  land  not  a  tenant,  3. 

absence  of  intention  to  create,  rebuts  presumption,  3. 

award  of  arbitrators  cannot  create,  4. 

formal  letting,  hiring  or  leasing  not  necessary,  5. 

present  letting  or  agreement  for  future  lease,  5. 

reservation  of  rent  not  essential,  6. 

validity  of  landlord's  title  not  material,  7. 

taking  on  eminent  domain  does  not  create,  7. 

fiduciary  relation  of  tenant,  8. 
Proof  of  tenancy,  11-14. 

a  question  of  fact  to  be  proved  by  parol,  11. 

production  of  lease  as  proof,  11. 

payment  of  rent  proves  what,  12. 

occupation  under  executed  lease  presumed,  12. 

entry  and  occupation  of  lessee,  13. 

province  of  court  and  jury,  14. 

drawing  inferences  from  agreed  facts,  14. 
Similar  contractual  relations,  18-28. 

contract  for  use  of  land  does  not  necessarily  create  tenancy,  18. 

intention  of  parties  is  the  test,  18. 

statutory  remedies  dependent  on  technical  relation  of  landlord  and 
tenant,  19. 

remedy  allowed  against  tenant  at  sufferance,  19. 

servant  occupying  master's  house  does  not  become  his  tenant,  20. 

relation  of  parties  after  termination  of  employment,  20. 

servant  may  be  tenant  to  his  master,  21. 

right  of  servant  to  emblements,  21. 

independent  contractor  becomes  tenant  when,  22. 

mill  operating  contracts  create  tenancy  when,  22. 

lodger  does  not  become  a  tenant,  23. 

distinction  between  lodger  and  tenant,  23. 

contract  for  lodging  not  within  statute  of  frauds,  24. 
:  separate  rooms  in  house  may  be  demised,  24, 

i  mortgagor  in  possession  is  not  a  tenant,  25. 

entry  by  mortgagee  on  tenant  of  mortgagor,  25, 

contracts  for  mortgage  or  for  letting,  26. 

suit  to  redeem  rebuts  presumption  of  tenancy,  26. 

mortgagee  in  possession  not  a  tenant  of  mortgagor,  27. 

tenancy  between  joint  owners,  28. 
Purchaser  in  possession,  29-35. 

occupant  under  contract  of  purchase  not  a  tenant,  29. 


INDEX.  916 

[References  are  to  Sections.] 
TENANCY— Oon^iwMed. 

remedies  of  vendor,  29. 

entry  under  parol  contract  to  purchase,  29. 

rule  contra  under  absolutely  void  contract,  29. 

purchaser's  right  to  possession  similar  to  that  of  tenant  at  will,  30. 

relation  of  parties  after  default  in  contract,  30. 

agreement  regulating  purchaser's  right  of  possession,  30. 

tenant  buying  premises  ceases  to  be  tenant,  31. 

assignment  by  vendor  creates  no  new  tenancy,  31. 

relations  between  parties  changed  by  agreement,  31. 

vendee  in  possession  entitled  to  emblements,  3^ 

vendor  continuing  in  possession  is  not  a  tenant,  33. 

character  of  occupation  determined  by  condition  subsequent,  34. 

proof  of  change  in  relationship,  35. 
Tenancy  or  grant  of  license,  37-45.     (See  License.) 
Tenancy  or  cropping  contract,  46-56.     (See  Cropping  Contracts.) 

TENANCY  FROM  MONTH  TO  MONTH, 

rests  on  payment  of  monthly  rent,  215. 

real  unit  is  rent  period,  215. 

periodic  tenancy  for  quarterly  period,  215. 

created  by  express  agreement,  216. 

holding  over  after  occupation  at  monthly  rent,  216, 

Oregon  doctrine,  216. 

occupation  for  indefinite  time  at  monthly  rent,  216. 

termination  rendered  definite  by  void  lease,  217. 

yearly  rent  payable  in  monthly  installments,  218. 

change  from  monthly  to  quarterly  periods,  218. 

not  a  continuing  right  of  possession,  219. 

effect  of  transfering  reversion,  219. 

TENANCY  BY  SUFFERANCE, 

general  nature  of  holding,  220. 
arises  on  holding  over,  19,  221. 
lessee  of  life  tenant  after  end  of  life  estate,  221, 

widow  having  dower  interest,  221. 
easement  taken  by  power  of  eminent  domain,  221. 
no  prior  contract  of  letting  necessary,  222. 
mortgagor  holding  after  under  mortgage,  223. 
purchaser  in  possession  making  default,  224. 
none  after  occupation  vested  by  operation  of  law,  225. 
exceptional  doctrine  in  Rhode  Island,  225. 
holding  over  by  divorced  wife,  225. 
rights  of  tenant  at  sufferance,  226. 
liability  for  loss  by  fire,  226. 
recovery  for  taking  on  eminent  domain,  226. 
use  and  occupation  not  allowed,  227. 
Massachusetts  statute,  227. 
notice  to  tenant  necessary,  227. 
right  of  entry  by  landlord,  228. 


916  INDEX. 

IReferences  are  to  8ections.'\ 
TENANCY    BY    SUFFERANCE— Con^inMed. 
tenant  cannot  maintain  trespass,  228. 
plea  of  liberum  tenementum,  228. 
technical  meaning  discarded  by  some  courts,  229. 
Wisconsin  doctrine,  229. 
New  York  statute,  229. 
use  of  term  in  statutes,  230. 
Michigan  statute,  230. 
Massachusetts  statute,  230. 
Rhode  Island  statute,  230. 

TENANCY  AT  WILL, 

determined  by  a  conditional  limitation,  114. 

created  by  grant  and  contract,  174. 

how  distinguished  from  other  holdings,  174. 

occupation  for  indefinite  time  without  rent,  175. 

parol  gift  of  land,  176. 

landowner  must  consent  to  holding,  177. 

purchaser  in  possession  not  tenant  at  will,  178. 

implication  from  permissive  occupation,   178. 

grantor  continuing  in  possession,  178. 

confers  a  complete  and  unqualified  possession,  179. 

entry  and  occupation  under  void  parol  lease,  180. 

unauthorized  lease  not  binding  on  true  owner,  181. 

effect  of  exceeding  authority,  181. 

determination  of  holding,  182. 

no  notice  required  at  common  law,  182. 

some  act  necessary  to  end  holding,  183. 

death  of  parties,  184. 

destruction  of  subject  matter,  184. 

question  of  reasonable  notice,  185. 

alienation  by  either  party  defeats  estate,  186. 

mode  and  purpose  of  transfer  immaterial,  187. 

notice  of  transfer  necessary,  188. 

recovery  of  rent  after  alienation,  189. 

Massachusetts  statute,  189. 

estate  at  will  not  capable  of  bargain  and  sale,  190. 

sale  voidable  only  at  election  of  landlord,  190. 

effect  of  involuntary  transfer  of  the  same,  190. 

notice  to  landlord  of  sale,  191. 

expression  "tenant  at  will  from  year  to  year,"  194. 

statutory  modifications,  196. 

changed  to  yearly  holding  by  payment  of  rent,  197. 

TENANCY  FOR  YEARS, 

a  chattel  interest,  168. 

must  be  definite  in  duration,  168. 

may  be  for  less  than  a  year,  168. 

whether  term  is  for  years  or  from  year  to  year,  168,  169. 

a  mere  estate  at  will  if  of  uncertain  duration,  170. 


INDEX.  917 

[Refere^ices  are  to  Sections.l 
TENANCY    FOR    YEARS— Continued. 
occupation  of  servant,  170. 
chattel  real  passes  to  administrator,  171. 
no  lien  for  purchase  money,  171. 
nature  of  estate  unaffected  by  length  of  term,  171. 
Ohio  doctrine,  171. 
sale  of  leasehold  on  execution,  172. 
no  curtesy  or  dower  in  leasehold,  173. 
no  right  to  emblements,  569. 
local  custom  changing  rule,  569. 

TENANCY  FROM  YEAR  TO  YEAR, 
rests  on  judicial  authority,  192. 
origin  and  development  of  such  holdings,  192. 
doctrine  applicable  to  conditions  in  this  country,  193. 
expression  "tenant  at  will  from  year  to  year,"  194. 
compared  to  estate  for  years,  195. 
effect  of  conveyance  of  reversion,  195. 
rent  falls  due  at  end  of  year,  195. 
statutory  modifications,  196. 

payment  of  rent  converts  estate  at  will  into  yearly  holding,  197. 
rent  referable  to  aliquot  part  of  year,  197. 
effect  of  payment  in  gross,  197. 
receipt  of  rent  may  be  explained,  198. 
invalid  parol  lease  governs  terms  of  holding,  199. 
time  when  yearly  holding  begins,  199. 
rent  recovered  in  action  of  use  and  occupation,  200. 
created  by  holding  over,  201. 
landlord's  right  to  charge  tenant,  201. 
new  tenancy  not  under  original  lease,  201. 
holding  over  is  on  same  terms,  202. 
conditional  limitation  applicable,  202. 
tenant  cannot  create  different  tenancy,  202. 
landlord's  option  to  charge  tenant  for  another  year,  203. 
acceptance  of  rent  implies  assent,  204. 
overt  acts  not  necessary  to  indicate  assent,  205. 
effect  of  dissent  on  part  of  tenant,  206. 
rule  in  England,  207. 

followed  in  Massachusetts  and  Missouri,  207. 
surrender  rendered  impossible  by  act  of  God,  208. 
length  of  holding  over  necessary  to  charge  tenant,  209. 
where  landlord  is  responsible  for  holding  over,  209. 
Kentucky  statute,  209. 

rebutting  presumption  of  year  to  year  tenancy,  210. 
invalid  new  agreement,  210. 
covenant  in  lease  as  to  holding  over,  211. 
express  renewal  of  lease,  212. 
treaty  for  new  lease,  212. 
effect  of  changes  in  amount  of  rent,  213. 


918  INDEX. 

[References  are  to  Sections.l 
TENANCY    FROM    YEAR    TO    YEAR— Continued. 
provision  for  penalty  of  double  rent,  214. 
holding  on  yearly  tenancy  may  be  assigned,  431. 
Statutory  provisions,  231-250. 
California,  231. 
Connecticut,  232. 
District  of  Columbia,  233. 
Delaware,  234. 
Georgia,  235. 
Indiana,  236. 
Iowa,  237. 
Kentucky,  238. 
Maine,  239. 
Massachusetts,  240. 
Michigan,  241. 
Missouri,  242. 
Nevada,  243. 
New  Hampshire,  244. 
New  York,  245. 
Oklahoma  Territory,  246. 
Rhode  Island,  247. 
South  Carolina,  248. 
Washington,  249. 
Wyoming,  250. 
yearly  tenant  not  entitled  to  emblements,  569. 

TENANTS  IN  COMMON, 

when  tenancy  exists  between,  28. 
one  cannot  lease  community  land,  86. 
right  to  change  amount  of  rent,  86. 
partnership  between  tenants  in  common,  86. 
notice  to  quit  by  joint  owners,  269. 
liability  to  co-tenant  for  rent,  657. 
indebitatus  assumpsit  allowed  when,  657. 
right  of  one,  to  sue  for  rent,  657. 

TENEMENT  HOUSES, 

no  obligation  to  keep  roof  in  repair,  612. 
application  of  maxim  sic  utere  tuo,  612. 
landlord's  duty  as  to  side  walls,  613. 

common  passageways,  614,  615. 

water  flowing  from  a  closet,  616. 
to  whom  duty  extends,  617,  618. 
reasonable  care  only  required,  619. 
place  where  accident  occurs,  620. 
defective  carpeting  of  passageways,  621. 
liability  for  negligent  repairs,  622. 

negligence  of  janitor,  623. 
tenant's  duty  to  use  due  care,  624. 


INDEX.  919 

IReferences  are  to  Sections^ 
TERM, 

may  be  for  years,  for  life,  or  for  perpetual  duration,  111. 

rule  against  perpetuities.  111. 

limitations  in  Alabama,  111. 

agricultural  land  in  New  York,  111. 

not  ended  by  death,  111. 

of  lease  for  years  must  be  certain,  112. 

determined  by  matter  ex  post  facto,  112. 

commencing  at  an  indefinite  future  time,  113. 

contingent  limitation  of,  114. 

or  of  tenancy  at  will,  114. 

happening  of  contingency,  115. 

condition  and  contingent  limitation  distinguished,  115. 

"life  of  building"  defined,  115. 

for  tenant's  life,  116. 

for  several  lives,  116. 

errors  in  calculating  length  of  term,  117. 

separate  parcels  covered  by  a  single  lease,  118. 

word  "from"  either  exclusive  or  inclusive,  119. 

statute  of  frauds  sets  what  limits  on,  154. 

recording  statutes  apply  to  what  length  of,  167. 

TERMINATION  OF  LEASES, 

introductory,  474. 

destruction  of  subject  matter,  474. 

"express  stipulation"  terminating  lease,  474. 
Repudiation  of  relation  by  tenant,  474a-481. 

hostile  claim  of  title,  474a. 

acts  of  disclaimer  open,  continued,  and  notorious,  474a. 

suflBciency  of  disclaimer,  475. 

attornment  or  delivery  of  possession  to  stranger,  476. 

conveyance  by  tenant  a  disclaimer  when,  477. 

forfeiture  by  matter  of  record,  478. 

forfeiture  by  deed  recorded,  479. 

payment  of  rent  as  act  of  disclaimer,  480. 

mere  words  never  work  forfeiture,  481. 
By  forfeiture  for  breach  of  condition.     See  Forfeiture. 
For  non-payment  of  rent.    See  Rent. 
By  surrender.     See  Surrender. 
By  merger.    See  Merger. 

Duty  to  restore  possession.    See  Restoration  of  Possession. 
Right  to  emblements.     See  Emblements. 

See  also  Notice  to  Quit. 
TEXAS, 

statute  against  assignment,  434. 

THEATER, 

ticket  a  mere  license,  44. 


920  INDEX. 

{.References  are  to  Sections.'] 
THIRD  PARTIES,  RIGHT  OF  ACTION  AGAINST, 

lessor  out  of  possession  cannot  bring  trespass,  640. 

tenant  may  maintain  trespass,  640. 

action  of  case  for  injury  to  freehold  maintainable,  641. 

what  constitutes  injury  to  the  freehold,  641. 

owner  of  local  right  entitled  to  action  for  invasion  of  it,  642. 

action  to  abate  nuisance,  642. 

"party  aggrieved"  in  statute  defined,  642. 

eminent  domain,  643. 

necessary  proof  of  injury  to  reversion,  644. 

landlord  cannot  sue  for  injury  to  crop,  645. 

tenants  at  will  and  at  sufferance,  646. 

TIMBER, 

See  Trees  and  Timber. 
TIME, 

date  not  essential  to  lease,  60. 

date  is  prima  facie,  for  commencement,  60. 

verbal  leases  date  from  possession,  60. 

Sunday  lease,  61. 

for  which  leases  may  be  granted.  111. 

rule  against  perpetuities,  111. 

limitation  in  Alabama,  111. 

agricultural  lands  in  New  York,  111. 

term  for  years  must  have  definite,  to  end,  112. 

determined  by  matter  ex  post  facto,  112. 

leases  from  an  indefinite  future,  113. 

what  constitutes  lease  for  life,  116. 

lease  for  term  of  several  lives,  116. 

errors  in  calculation  of,  117. 

word  "from"  either  exclusive  or  inclusive,  119. 

computation  of,  in  respect  to  validity  of  parol  lease,  154. 

computation  of,  in  respect  to  recording  statutes,  167. 

for  payment  of  rent,  661. 

not  due  till  end  of  term,  661. 

computation  of  time,  661. 

rent  falling  due  on  Sundaj',  661. 

TITLE, 

warranty  of,  by  lessee  on  assignment,  435. 
cannot  be  litigated  in  summary  process,  563. 
eviction  by,  paramount,  669. 
purchase  of  adverse,  by  tenant,  689. 

tax  title,  690. 
lessor  need  give  no  evidence  of,  701. 
showing  transfer  or  expiration  of  landlord's  title,  703. 

tax  or  execution  sale,  703. 

foreclosure  of  mortgage,  703. 
tenant  may  buy,  at  execution  sale,  704. 
attornment  to  holder  of  tax  title,  709. 

See  Denial  of  Title. 


INDEX.  931 

[References  are  to  Sections,'] 
TOLLS, 

from  use  of  dam,  what  included,  663. 

TREES  AND  TIMBER, 

parol  license  to  cut  and  carry  away,  38. 
lease  of  growing,  muet  be  recorded,  163. 
cutting  of,  constitutes  waste  when,  635. 
clearing  wild  land  for  cultivation,  636. 

TRESPASS,  ACTION  OF, 

by  tenant  at  sufferance,  228. 

when  maintainable  by  assignee,  458. 

lies  against  tenant  at  will  guilty  of  waste,  488. 

plea  of  molliter  manus  imposuit,  556,  558. 

against  landlord  regaining  possession  by  force,  558. 

for  assault  and  battery  against  landlord,  559. 

Massachusetts  doctrine,  559. 

statutory  modifications,  561. 

for  injury  to  way-going  crop,  569. 

right  of,  depends  on  possession,  640. 

tenant  may  maintain,  640. 

landlord  out  of  possession  cannot  maintain,  640. 

landlord  cannot  bring,  for  injury  to  crops,  645. 

lessor  at  will  may  maintain,  646. 

lessor  cannot  maintain,  against  lessee,  647. 

for  mesne  profits  by  lessor  against  lessee,  651,  653. 

TRESPASS  ON  THE  CASE, 

by  landlord  lies  for  injury  to  freehold,  641,  642. 

TRUSTEE, 

holding  land  not  a  tenant,  3. 

authority  of,  to  grant  lease,  91. 

for  charitable  use,  91. 

cestui  que  trust  of  lessee  must  claim  through  trustee,  566. 

must  bring  action  for  rent,  655. 

estoppel  to  deny  title,  693. 

TURPENTINE, 

from  trees  is  personal  property,  567. 


U 
UNDISCLOSED   PRINCIPAL, 

See   Agent. 

UNSANITARY  CONDITION, 

of  premises  renders  landlord  liable  when,  583. 
duty  to  warn  against  infection,  584. 

USE  AND  OCCUPATION, 

for  occupation  under  void  agreement,  200. 
tenant  at  sufferance  not  liable  in  action  of,  227. 


922  INDEX. 

[References  are  to  SectionsJl 
USE    AND    OCCUPATION— ConiinMed. 
Massachusetts  statute,  227. 
notice  to  tenant  necessary,  227. 
no  prior  demand  for  rent  necessary,  503. 
old  action  of  debt  for  rent,  650. 
early  statutes,  650. 

distinctions  between  actions  of  debt  and  covenant,  650. 
not  an  action  ex  delicto,  651. 

distinguished  from  trespass  for  mesne  profits,  651. 
will  not  lie  for  a  trespass,  651. 
waiver  of  the  tort  allowed  when,  651. 
amount  of  recovery  is  fair  value  of  property,  651. 
will  not  lie  on  lease  under  seal,  652. 
contrary  rule  in  Michigan,  652. 
trespass  for  mesne  profits  described,  653. 

relation  of  landlord  and  tenant  necessary  to  support  use  and  occu- 
pation, 654. 
action  not  maintainable  against  adverse  holder,  654. 
implied  agreement  only  necessary,  654. 
implication  of  tenancy  rebutted  how,  655. 
allegation  of  title  in  plaintiff  not  necessary,  655. 
suits  to  recover  crop  rents,  656. 
liability  of  tenants  in  common  to  one  another,  657. 

indebitatus  assumpsit  allowed  when,  657. 
right  of  assignee  to  maintain  action,  658. 

attornment  unnecessary,  658. 
lessor  cannot  sue  after  assignment,  658. 
cropping  contract  enforced  by  administrator,  658. 
sub-tenant  not  subject  to  action,  659. 
agent  with  undisclosed  principal,   660. 

lease  under  seal,  660. 

Illinois  statute,  660. 
no  legal  debt  till  rent  is  payable,  661. 
rent  not  due  till  end  of  term  except  by  agreement,  661. 
•computation  of  time  for  payment,  661. 
rent  falling  due  on  Sunday,  661. 
defenses  to  actions  for  rent,  665.     (See  Abatement.) 
recovery  of  interest,  666. 

USE  OF  DEMISED  PREMISES, 

validity  of  restriction  on,  382. 

right  as  to,  in  absence  of  restriction,  382. 

what  constitutes  a  covenant  for  restrictive  use,  283. 

effect  of  recitals  in  lease,  383. 

what  constitutes  a  breach  of  covenant,  383. 

prohibited  use  enjoined  when,  384. 

covenant  must  be  express  in  that  case,  384. 

injunction  to  stay  waste,  384. 

covenant  for  personal  occupation  not  a  usual  one,  385. 


INDEX.  923 

^References  are  to  Sections.'i 
USE    OF    DEMISED    FRBMISES— Continued. 

domestic  relations  of  tenant  a  collateral  matter,  385. 
agreement  not  "to  make  or  suffer"  an  unlawful  use,  386. 
conditions  against  assignment,  431. 


V 

VERMONT, 

forfeiture  for  non-payment  of  rent,  533. 

VIRGINIA, 

statute  as  to  notice  to  quit,  314. 
forfeiture  for  non-payment  of  rent,  534. 
rent  abated  under  statute,  681. 

VOID  AND  VOIDABLE, 
distinguished,  495. 

W 
WAIVER, 

of  ground  for  forfeiture,  what  constitutes,  496. 

none  of  conditional  limitation,  496. 

acceptance  of  rent  constitutes  when,   497. 

suit  for  entire  amount  of  rent,  497. 

distraining  for  rent,  497. 

effect  of  mere  demand  for  rent,  497. 

lessor  must  have  knowledge  of  ground  for  forfeiture,  497. 

past  due  rent  receivable  without  waiver,  498. 

allowing  default  to  continue  not  a  waiver,  499. 

permission  to  hold  over  constitutes,  499. 

none  of  continuing  covenant,  500. 

what  constitutes  a  continuing  covenant,  500. 

of  estoppel  to  deny  title,  694. 

WARRANTY, 

of  title  on  assignment  of  leasehold,  435,  436. 

of  fitness  not  implied,  574. 

oral  evidence  of,  inadmissible,  575. 

of  dwelling  house,  576. 

of  rooms  in  tenement,  576. 

of  furnished  apartments,  577,  578. 

WASHINGTON, 

statute  as  to  yearly  tenancies,  249. 
statute  as  to  notice  to  quit,  315. 

WASTE, 

definition,  625. 

distinction  between  voluntary  and  permissive,  625. 

history  of  remedy  for,  625. 

mode  of  procedure  to  charge  tenant  for,  626. 

writ  of  waste  superceded  by  action  of  case,  626. 


924  INDEX. 

[References  are  to  Sections.'] 
WASTE — Continued. 

extent  of  liability  for,  by  tenant  at  will,  627. 

destruction  by  fire  is  permissive  waste,  627. 

liability  for  negligence  is  independent  of  agreement,  628. 

extent  of  implied  obligation  on  tenant,  628. 

acceptance  of  rent  not  a  waiver,  628. 

tenantable  repairs  only  are  required,  629. 

what  constitutes  such  repairs,  629. 

express  covenant  becomes  measure  of  liability,  630. 

action  of  tort  allowed  when,  630. 
covenants  raised  on  demise  of  farming  land,  631. 
change  in  tillage  as  constituting  waste,  631. 
action  of  account  allowed  on  lease  on  shares,  631. 
construction  of  covenant  "to  improve"  farm,  631. 
alterations  in  buildings  constitute  waste,  632. 

authorized  alterations,  632. 

rule  in  the  United  States,  633. 
motive  immaterial  in  determining  what  constitutes  waste,  634. 
cutting  timber  constitutes  waste  when,  635. 
clearing  wild  land  for  cultivation,  636. 
right  of  life  tenant  to  open  mines,  637. 
failure  of  life  tenant  to  pay  taxes  constitutes,  637. 
injunction  against  threatened  waste,  638. 
forfeiture  of  place  wasted,  639. 

WATER, 

lease  of  surplus,  in  canal,  352a. 

rate  not  a  tax  or  assessment,  414. 

landlord  not  bound  to  pay,  414. 

covenant  by  tenant  to  pay,  construed,  414. 

implication  of  agreement  by  landlord  to  pay,  414. 

injuries  caused  by  flowing,  616. 

WEAR  AND  TEAR, 

tenant  not  liable  for  ordinary,  629. 

WEST  VIRGINIA, 

statute  as  to  notice  to  quit.  316. 
forfeiture  for  non-payment  of  rent,  535. 

WHARVES, 

agreements  for  payment  for,  374. 
liability  for  injuries  received  on,  608,  609. 

WISCONSIN, 

summary  process  only  lies  against  tenant,  19. 
doctrine  as  to  tenancy  at  sufferance,  229. 
statute  as  to  notice  to  quit,  317. 
statute  against  implication  of  covenants,  351. 
forfeiture  for  non-payment  of  rent,  536. 
forfeiture  for  waste,  639. 


INDEX.  925 

[References  are  to  Sections.'] 


WOOD, 

drift,  belongs  to  lessee,  567. 

cutting  of,  constitutes  waste  when,  635. 

clearing  wild  land  for  cultivation,  636. 

WYOMING, 

statute  as  to  yearly  tenancies,  250. 
forfeiture  for  non-payment  of  rent,  537. 


Y 
YEAR  TO  YEAR  TENANCY, 

See  Tenancy  fkom  Yeae  to  Yeab. 


Whole  number  of  pagres,  1011. 


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